ORB a.r.l.; & Ors v Ruhan

Below I describe some key features of the September 2015 application. Section D3.2 concerns what the applicants said that they proposed to do. In section D3.3 I set out the explanation given for seeking a court order. Section D3.4 describes what was said, in relation to Oscar, about the knowledge of Mr Ruhan and others. In section D3.5 I describe what was said on 25 September 2015 about interaction with the police. In section D3.6 I note certain criticisms of Mr Ruhan, and additional allegations made by the claimants about Mr Ruhan’s conduct. Section D3.7 records matters concerning each of Dr Smith and Orb which Mr Drake drew to my attention.

The 25 September skeleton argument stated at paragraph 15:

15.

Notwithstanding the above facts, which provide evidence showing that the source of the approach was connected with Mr Ruhan, the Claimants need to conduct further investigations in relation to the material in order to confirm the identity of the client and obtain evidence to verify Oscar’s information before they will be in a position to make a substantive application for relief in the context of these proceedings. To this end the Claimants have consulted Dr Paul Hunton, a cybercrime / hacking expert, with a view to instructing him to analyse the relevant materials once received.

At an early stage of the 25 September hearing Mr Drake added orally:

I come then to the application. It puts us in a difficult position. We have been approached by someone who, on the face of things, is credible with information that, on the face of things, implicates people involved in these proceedings, either Mr. Ruhan or his associates, and it behoves us to be very careful, plainly, to ensure that the information that is being provided to us is right and, in order to do that, we need to test the information. In order for us to test the information, we need to receive the information. …

In the course of oral submissions a question arose as to what claim on the part of the applicants would be advanced by, in the words of paragraph 15 of the 25 September skeleton argument, “further investigations in relation to the material in order to confirm the identity of the client and obtain evidence to verify Oscar’s information [so that] they will be in a position to make a substantive application for relief in the context of these proceedings”. In that regard, as well as a “substantive application…” in the main action, three additional potential remedies were identified in paragraph 46 of the 25 September skeleton argument:

46.

Once the relevant material has been analysed and the source of the instructions to ‘Oscar’ can be confirmed, then the Claimants (and others), Dr Smith and/or other appropriate individuals will pursue remedies to protect themselves and their interests by seeking any one or more of the following:

46.1

an injunction, e.g. under section 3 of the Protection From Harassment Act 1997; and it is intended that such relief be sought prior to 19 October, i.e. before the person instructing ‘Oscar’ requires him to carry out the ‘file-drop’ intended to incriminate the Claimants and others in serious wrongdoing;

46.2

a private prosecution; and/or

46.3

a permanent prohibitory injunction prohibiting Oscar’s client from procuring the upload of any data whatsoever to Pro Vinci’s or the First to Third Applicants’ servers, computers, laptops, mobile phones and other digital devices.

As to deployment of relevant information in the main action, Mr Drake stressed the potential impact on Mr Ruhan’s credibility at trial:

The claim or claims that are being asserted by the various parties in these proceedings will turn on, by some measure, the credibility of the witnesses. If it transpires that this conduct - and I say “if” - if it transpires that this conduct was at the behest of Mr. Ruhan, then that will go to a matter of credibility and, thus, go to the integrity of his claim. …

After Mr Drake had taken me through the additional potential remedies in paragraph 46 of the 25 September skeleton argument, I noted that Mr Drake had not mentioned a claim for contempt of court. Mr Drake responded that contempt of court had not been mentioned only because he had not thought about it. He added:

We did consider whether it might be regarded as abusive if it comes to pass, but we were not entirely certain whether it fell under that rubric.

This fourth possible type of additional remedy was left on the basis that the applicants did not rule out the possibility that the alleged conduct of Mr Ruhan might constitute a contempt of court or an abuse.

Paragraph 16 of the 25 September skeleton argument stated:

16.

All material and evidence provided to Stewarts Law by ‘Oscar’ will of course be provided to the Metropolitan police and any other relevant authorities. The Claimants and Stewarts Law are, however, understandably concerned that once they have access to the link to the tor server, and the pornographic material thereby comes into their possession, there is a risk of automatic commission of one or more criminal offences. The Claimants have identified, in particular, the following:

16.1

section 1, Protection of Children Act 1978 (“PCA”);

16.2

section 160, Criminal Justice Act 1988; and

16.3

an inchoate offence under Part 2 of the Serious Crime Act 2007.

In relation to these statutory provisions, a footnote in the 25 September skeleton argument drew attention to section 1(4) of the PCA; section 160(2) of the Criminal Justice Act 1988; and section 50 of the Serious Crime Act 2007. It is convenient to set out extracts from those provisions here:

Paragraph 17 of the 25 September skeleton argument stated:

17.

The Claimants seek the present orders in advance of taking any steps to secure the pornographic material so that the material may be obtained with the Court’s sanction, and so insofar as it is necessary to establish that the Claimants had ‘legitimate reason’ (or the equivalent) for committing any offence, the Court orders will provide such legitimate reason.

The September 2015 application sought relief both under CPR 25.1(1)(c) and under the inherent jurisdiction of the court. As to CPR 25.1(1)(c), this provides that the court may grant an order:

(i)

for the detention, custody or preservation of relevant property;

(ii)

for the inspection of relevant property;

…

(iv)

for the carrying out of an experiment on or with relevant property.

The words “relevant property” are defined in CPR 25.1(2) for present purposes as meaning:

Property (including land) which is the subject of a claim or as to which any question may arise on a claim.

The 25 September skeleton argument explained in paragraph 22 that it was not suggested that the property in question was the subject of a claim. The applicants’ case is that the property falls within paragraph (1)(c) because it is property “as to which a question may arise on a claim by the claimants and others to be made against the perpetrators.” Paragraph 23 of the 25 September skeleton argument added:

23.

In the present case, the ‘relevant property’ is as follows:

23.1

screen shots and data showing the original chat room conversations between ‘Oscar’ and the client;

23.2

the pornographic images themselves, on the zip file;

23.3

the satellite data that ‘Oscar’ obtained, showing that the communications emanated from the mv ‘Babylon’; and

23.4

data which demonstrates the connections with Lopez and Hobday.

In paragraphs 24 to 40 of the 25 September skeleton argument the applicants set out detailed submissions explaining why the order that they sought could be made pursuant to powers concerning detention, custody or preservation of relevant property under CPR 25.1(2) sub-paragraph (c)(i), inspection of relevant property under sub-paragraph (c)(ii), and carrying out of an experiment on or with relevant property, within sub-paragraph (c)(iv). It was stressed that the order was concerned with only four, relatively confined, classes of material. It was also submitted that an order protecting those acting on behalf of the claimants from criminal prosecution would be proportionate to the objective of allowing the claimants to protect themselves as the victims of civil and criminal wrongs, and all the more so in circumstances where it was clear that the claimants’ conduct was unrelated to the mischief which the criminal offences were intended to proscribe, namely the sexual abuse and exploitation of children. It was urged that what was proposed was reasonably necessary in order to advance future applications and claims which turned on establishing the identity of the person who gave the instructions to plant the indecent images on Pro Vinci’s server.

Questions of human rights were addressed in paragraph 37 of the 25 September skeleton argument as follows:

37.

… there is no question of the human rights of the people whose information is on the device being under threat. It is submitted that the metadata relating to the identity of those who created the images either does not engage any relevant human right or, even if it did, any such right would be trumped by the Claimants’ superior justification for interrogating that data, e.g. the protection of others (including children abused in creating such images). To the extent that the human rights of the children are engaged in relation to their privacy and dignity, it is submitted that inspection is justified for the same reason as just given, i.e. the public interest in prosecuting such crimes and other wrongdoing.

In relation to confidentiality, paragraph 39 of the 25 September skeleton argument stated:

39.

Finally, while confidentiality as such does not arise on the facts, there would be no difficulty in the Claimants’ expert, Dr Hunton, and/or any other person who is given access to the file (including, for instance, individuals at Stewarts Law) providing confidentiality undertakings in accordance with factor (f), should the Court consider it appropriate to do so.

Stewarts Law’s letter to the Commercial Court on 7 September 2015 described, among other things, an application which the claimants proposed to make concerning alleged intimidation or harassment by Mr Ruhan. It was said to be the claimants’ intention to produce evidence in that regard by 30 September 2015. Paragraph 24 of the letter stated that the claimants had “repeatedly expressed well-founded concerns that Mr Ruhan has been orchestrating a campaign of intimidation of our clients and their associates, including their proposed witnesses in their case against Mr Ruhan and threats to Dr Cochrane’s two daughters.” I deal with those matters, which include allegations examined by Dingemans and Warby JJ in judgments handed down in December 2014 and March this year respectively, in section D3.6 below. Paragraph 24 said that the relevant concerns formed the basis for this particular proposed application, which had been described in a fourth letter from Stewarts Law to Memery Crystal dated 7 August 2015. Paragraph 25 of the letter noted certain features of the proposed evidence, and added that, as would be set out in the evidence to be filed in support of the application:

… the campaign of harassment of our clients is ongoing, with the latest incident of harassment occurring as recently as last week on Thursday, 3 September 2015.

The letter of 7 September was copied to Memery Crystal. Ms Irving stated at paragraph 9 of Irving 1 that the reference to “the latest incident” on 3 September 2015 was a reference to Oscar’s phone conversation with Dr Smith that day. However this was not explained in the letter.

Irving 1 stated at paragraph 10:

10.

I also explain below how the Applicants have made reports of various matters to the police over the last two years. I reported the above incident [i.e. the events of 3 September 2015] to Danny Shipston of the London Metropolitan police on 4 September 2015 and it was recorded under Police CAD number 6538724/15 later that day at 16:30. Police Officers Sarah Jane Morrison and Tim Molden attended our office to obtain more information.

After describing Dr Smith’s first meeting with Oscar on 7 September 2015, Irving 1 continued at paragraph 13:

13.

Following the meeting with Oscar, Dr Smith asked me to telephone Oscar on Wednesday 9 September 2015 to arrange a further meeting. In the meantime I made a further report to the police, recorded under the same CAD number, and Police Officers Russell Coletti and Thomas May attended Pro Vinci’s offices on 9 September 2015 to discuss the on-going incident.

Emails forming part of exhibit “SCI 1” (“the SCI 1 emails”), when taken in chronological order, began with an email dated 9 September 2015, timed at 14:36. This email was sent by Ms Irving to police officers Coletti, May, and Molden, and appears to have attached images taken from Pro Vinci’s meeting room window when Dr Smith met Oscar on 7 September. Among other things it gave contact details for Mr Ruhan and Memery Crystal:

Dear Tim

Please see attached some images that I took from our meeting room window when Gerald met with the “hacker”.

…

Andrew Ruhan has several addresses. He spends a lot of time on his boat, MY Babylon which is normally situated in Majorca or Ibiza.

You will probably need to call him to arrange a meeting as he moves around a lot – his mobile is [details were set out].

Alternatively, you could arrange a meeting through his solicitors who are: [details were set out]

The office that Mr Ruhan shares with Genii Capital is at [details were set out].

I look forward to hearing from Thomas or Russell regarding the forensics issue we discussed and to seeing one of them later with regard to the statement for the usb stick I handed over.

I have discussed this issue with Dawna and Gerald (and our solicitors) and we all feel that we would rather this was progressed sooner rather than later. As discussed this morning, please assign this (or certainly the interview process) to someone who is available this week or early next so that we can finally get some assistance with this ongoing harassment and eventually some peace.

Many thanks

Sinead

Continuing in chronological order, the next SCI 1 email was sent by Ms Irving at 13:39 on 10 September 2015 to officers Coletti, May, Molden and Shipston. It stated:

Dear All

Gerald has just had a further meeting with the hacker and I have managed to secure the cup he was drinking from and the cigarette butts from which he was smoking. They are in a plastic wallet but I think it is important that someone comes to collect these for forensics as soon as possible to avoid any contamination etc.

I will also be able to supply you with a report on the recent meeting once I have typed it up which I hope to do shortly.

Please can someone let me know who will be available to collect this evidence today?

Thanks

Sinead

After her description in paragraph 15 of what was said by Oscar at the second meeting with Dr Smith on Thursday 10 September 2015, Ms Irving stated at paragraph 16 of Irving 1:

16.

On 11 September 2015 a further complaint was submitted to the police under the same CAD reference number via email as the officers allocated to the matter were all on courses or working night shifts. I exhibit a copy of the email chain (SCI 1 page 17-21).

The email chain referred to by Ms Irving comprised the remainder of the SCI 1 emails and consisted of 3 emails sent on 11 September 2015. As to these:

Irving 1 at paragraph 43 referred to paragraphs 10, 13 and 16 as cited above. It added:

43.

… In fact, throughout the two-year period commencing in October 2013, the Applicants have made regular complaints to the Metropolitan police in respect of [various identified incidents of harassment prior to September 2013]. The Applicants do intend, however, to pass any material obtained to the police.

At paragraph 44 Irving 1 stated:

44.

Pro Vinci particularly seek an order to secure the evidence from Oscar themselves because, given his background and his links with the Anonymous group and his reluctance even to attend at Stewarts Law’s offices, it is obvious that Oscar will not voluntarily provide that information directly to the police himself. If Dr Hunton concludes that Oscar’s allegations are true, the Applicants will consult with specialist lawyers to consider whether it would be appropriate with a view to commencing a private prosecution.

Consistently with these observations by Ms Irving, the 25 September skeleton argument stated at paragraph 16 (see section D3.3 above) that all material and evidence provided to Stewarts Law by Oscar would be provided to the Metropolitan Police and any other relevant authorities. In the course of oral submissions on 25 September 2015 Mr Drake raised the question whether the order to be made by the court should permit property falling within the order to be delivered to the police. Arrangements for this were the subject of submissions leading to the provision eventually made in paragraph 2 of the order. No other express reference to the police was made during the course of oral submissions on 25 September 2015.

Irving 1 at paragraph 49 noted that the conduct of all the parties had been criticised by the court. Paragraph 49 gave examples of criticisms not only of Mr Ruhan but also of the claimants. Although the present section is concerned with criticisms of Mr Ruhan, it is convenient to set out the entirety of paragraph 49:

49.

This litigation has been described as no holds barred litigation. The proceedings between the Applicants and Mr Ruhan are bitterly contested and no expense has been spared by any party in litigating the case. The Claimants, Mr Ruhan and their associates have also engaged in related litigation in the BVI and the Isle of Man. The conduct of all the parties, including the Claimants, has been criticised by the Court. I refer in this regard to the following examples of criticisms made in judgments:

a.

Judgment of Registrar Barber dated 19 December 2014 (SCI 1 pages 151-192) in respect of Skypark Limited’s unsuccessful petition heard on 29 and 30 October 2014 in the High Court in Bankruptcy to bankrupt Mr Ruhan, which was dismissed with indemnity costs and in which the Registrar described the Skypark Limited’s petition as a tool of oppression against Mr Ruhan. Similarly, in a recent costs-related hearing, in relation to Mr Ruhan’s claim for his costs of defending the bankruptcy petition, Master O’Hare described Mr Ruhan as having “taken an overly aggressive attitude. They [i.e Mr Ruhan or his solicitors or both] took advantage of an oversight and kept it secret until the relevant time had expired.”

b.

Judgment of Mr Justice Cooke dated 11 February 2015 (SCI 1 pages 193-222) in respect of the First to Third Applicants’ failed application to join Mr Stevens and three companies owned/controlled by Mr Stevens as co-defendants to these proceedings and for a freezing injunction against those parties and Mr Ruhan. The Claimants were criticised for making an over-recovery through self-help; and for the failure to make disclosure of a certain settlement agreement between the Claimants and Mr Ruhan’s former associates until midway through the hearing which the judge considered to show a lack of clean hands and a failure to offer appropriate full and frank disclosure. The Judge also reiterated the concerns expressed by the Registrar in the judgment just noted. The Claimants were ordered to pay Mr Stevens’s costs on the indemnity basis, and to pay £1 million on account of his claim for costs of £3.1million. Mr Justice Cooke has also made further criticisms of the Claimants during a subsequent hearing on 19 and 20 March 2015 (SCI 1 pages 223-231). Mr Justice Cooke’s February judgment is the subject of an appeal, permission for which has been granted and which is listed for the substantive hearing in October 2016.

c.

In the same February judgment, Mr Justice Cooke also found that Mr Ruhan had repeatedly and deliberately misled the Court in the way he had stated twice in pleadings that he had no interest in the assets which form a key part of the claims brought by the Claimants against Mr Ruhan, only for him later to reverse that position completely and offer the correction that actually he, Mr Ruhan, was their ultimate beneficial owner. On this basis, the Court also ordered him to pay indemnity costs.

Paragraphs 51 to 54 of Irving 1 concerned the incidents of harassment referred to in paragraph 43 of Irving 1 (see section D3.5 above). In this context those paragraphs dealt with prior applications by the claimants and their associates (referred to together as “the Orb Parties”) making allegations against Mr Ruhan. Evidence relevant to those applications was described in paragraph 51. Also in that paragraph it was said that Orb, Pro Vinci, Dr Cochrane and their associates had been the victims of a sustained campaign of intimidation and harassment, and that witnesses for the claimants in the main action were among those intimidated.

Examples of what the “campaign” had included were set out in paragraph 52 of Irving 1:

52.

This campaign has included:

a.

threats made against Dr Cochrane’s and Dr Smith’s children (in the form of anonymous phone calls stating “I know [the first names of each of the two children]”;

b.

key witnesses of the Claimants and employees of Pro Vinci being photographed and followed;

c.

use of confidential information relating to Dr Cochrane and her family’s holiday plans in evidence filed against the Orb Parties;

d.

bribing Pro Vinci’s employee to procure a breach of confidence; and

e.

employing one of Pro Vinci’s former security guards as a process server to serve Dr Cochrane at her home with papers in a deliberately intimidating way.

The fourth of these examples, summarised at paragraph 52 (d) quoted above, gave rise to legal proceedings. In that regard Ms Irving referred to judgments of Dingemans J on 17 December 2014, [2014] EWHC 4723 (QB), and of Warby J on 17 March 2015, [2015] EWHC 1073 (QB). In relation to those judgments, and the matters giving rise to them, paragraphs 53 and 54 of Irving 1 stated:

53.

… In essence, in 2014 employees of Quest Global Limited (“Quest”), a company specialising in private investigations, gave Mr Darren Woodhead, who was a member of Pro Vinci’s security team at the time, £2,000 in cash in an unmarked envelope to procure the Orb Parties’ confidential information in breach of Mr Woodhead’s contractual and common law duties of confidentiality. As a result, Dr Cochrane, Orb and Pro Vinci made an application against Quest for an order requiring, amongst other things, Quest to reveal the identity of their client. In granting that relief, Mr Justice Dingemans held that there was a good arguable case that Quest’s client:

a.

knew that Quest’s approach to Mr Woodhead was likely to involve an inducement to act in breach of contract (i.e. a common law tort) (para 9 of his judgment (SCI 1 page 284));

b.

committed an offence under s.55 of the Data Protection Act (para 10 of his judgment (SCI 1 pages 284-285)); and

c.

committed a tort under s.4(4) of the Data Protection Act (para 11 of his judgment SCI 1 page 285).

54.

The Affidavit ordered by Mr Justice Dingemans revealed that Quest’s client (the “Client”) was domiciled in an offshore jurisdiction with apparently no direct connection to the Orb Parties (and therefore no ostensible reason to be investigating them). However, upon further investigation it became clear that the Client had a link to Mr Ruhan. Consequently, Dr Cochrane, Orb and Pro Vinci made a further application for an Order permitting the use of the Affidavit in these Commercial Court proceedings. That application was heard in private by Warby J on 17 March 2015, although the judgment was rendered in public. Although Warby J denied the applicants permission to use the real name of Quest’s client (whom he described in his judgment using the fictitious initials “TAW”) in these Commercial Court proceedings, Warby J did nonetheless make some helpful comments in his judgment (SCI 1 pages 294-295))

Turning to the 25 September skeleton argument, as noted in section B above, paragraph 10.4 made reference to the proceedings before Dingemans and Warby JJ. The allegations of harassment generally were noted at paragraph 12, where reference was made to paragraph 9 of Irving 1 (see section D3.4 above), and to paragraphs 51 and 52 of Irving 1. Paragraph 18 of the 25 September skeleton argument recorded that Stewarts Law’s letter to the court dated 7 September 2015 referred to an “ongoing” campaign of harassment of their clients.

In his oral submissions on 25 September Mr Drake referred me to paragraph 12 of the 25 September skeleton argument, and noted that the allegations of harassment were set out “in some detail” in Irving 1. Mr Drake added that he did not want to dwell on those matters:

… too heavily today, because the facts that give rise to today’s application speak for themselves.

Ms Irving, at paragraph 45 of Irving 1, said that the applicants considered it “prudent to proceed on the basis that they have a duty of full and frank disclosure to the court…”. Paragraph 45 asserted that this duty was discharged by Ms Irving “in the paragraphs that follow”.

The first item of disclosure appeared in the next paragraph of Irving 1:

46.

As is demonstrated by the description I have provided of the various meetings with Oscar, Pro Vinci has relied upon the word of Dr Smith in respect of the meetings Dr Smith attended with Oscar alone. Dr Smith is a twice convicted fraudster and owes the Crown’s enforcement receiver over £40 million in respect of a Confiscation Order made following his last conviction for fraud. Nonetheless, I should make clear that what Dr Smith has described in the un-recorded conversations with Oscar is corroborated by the content and style of the conversations which have been recorded, and my own contact with him.

As noted in section C above, the February 2015 particulars contain an account of Dr Smith’s pleas of guilty to charges relating to the transfer of Izodia’s monies. They also make reference to the consequential compensation and confiscation order.

The second item of disclosure concerned the agreement between the claimants and Dr Smith. Paragraph 47 of Irving 1 stated in that regard:

47.

As pleaded in paragraph 21 of the Claimants’ Amended Particular of Claim, the Claimants have agreed with Dr Smith that, in return for his cooperation and assistance with the Commercial Court proceedings, they will transfer to him 50% of the sums recovered in these proceedings (after deduction of their costs and expenses of the claim) up to the amount owing by Dr Smith under the Confiscation Order. Any such sum received by Dr Smith on this basis would be his realisable property as defined by section 71 of the Criminal Justice Act 1988, and thereby payable to Dr Smith’s Enforcement Receivers to discharge wholly or in part the Confiscation Order.

The third item of disclosure was dealt with at paragraph 48, and concerned Mr Tim Power:

48.

Tim Power, who is an employee of Pro Vinci, was convicted of insider trading in 2009. However, Mr Power’s role in the events described in this Affidavit is limited to one brief meeting with “Oscar” at the Westbury hotel on 14 September 2015.

The fourth item of disclosure concerned criticisms by the court of the conduct of the claimants. As noted in section D3.6 above, criticisms by the court of the claimants were dealt with in paragraph 49 of Irving 1 at the same time as setting out criticisms by the court of Mr Ruhan. So far as the claimants were concerned, it will be seen from the quotation in section D3.6 above that paragraph 49(a) described findings by Registrar Barber in relation to an unsuccessful bankruptcy petition heard on 29 and 30 October 2014, and that paragraph 49(b) described criticisms of the claimants by Mr Justice Cooke in a judgment dated 11 February 2015, and in a subsequent hearing on 19 and 20 March 2015.

The fifth item of disclosure concerned two allegations by Mr Ruhan:

50.

I should also draw attention to the fact that Mr Ruhan has accused the First to Third Applicants and/or their associates of illegal behaviour as follows:

a.

On 16 October 2014 Mr Ruhan accused the First to Third Claimants and their associates of tipping off the Guardia Civil of Spain that he had illegal drugs on board one of his super-yachts in an attempt to incriminate Mr Ruhan. Indeed, Mr Ruhan even suggested that the Claimants had planted the relevant drugs on his vessel, which the Claimants completely deny. See the letter of Memery Crystal LLP to Stewarts Law LLP dated 16 October 2014 (SCI1 pages 232-233) and Stewarts Law LLP’s response of the same date (SCI1 pages 234-236).

b.

Mr Ruhan has on one occasion complained that he is being tracked and under surveillance.

Under the heading, “Conclusion”, paragraph 55 of Irving 1 referred to a matter which had also been mentioned in paragraph 41. This concerned the danger that Oscar’s claims of a link to Mr Ruhan might be false. Paragraph 41 pointed out that:

41.

… In theory, Oscar could have picked up from internet searches that the Claimants would “react” if Mr Ruhan was said to be involved.

Paragraph 55 of Irving 1 stated:

55.

I should reiterate that we at Pro Vinci are mindful of the need to exclude the possibility that, as I alluded to in paragraph 41 above, Oscar is not telling the truth, and instead acting on his own for personal financial gain, rather than for Mr Ruhan or his associates. Having spoken with him myself on several occasions now (as described above), I think it very unlikely that he is making this up, but it remains one possibility.

As to these items of disclosure, the 25 September skeleton argument dealt first with the matters giving rise to Cooke J’s criticisms in the judgment dated 11 February 2015. Paragraph 9 of the 25 September skeleton argument stated:

9.

Mr Ruhan, in turn, makes a number of counterclaims arising from the fact that, following the settlement of related proceedings in the Isle of Man between the claimants (and their associates) and certain of Mr Ruhan's former business associates, the Claimants have acquired assets which they say derive from the assets transferred to Mr Ruhan under the 6 May 2003 oral agreement. Mr Ruhan now asserts proprietary claims in respect of those assets and seeks related relief. He also makes personal claims including for dishonest assistance and unconscionable receipt. The Claimants deny any wrongdoing; it has always been their pleaded position that they will account to Mr Ruhan following trial if it transpires that they have recovered assets with a value greater than their claims.

Paragraphs 41 and 42 of the 25 September skeleton argument dealt with the fact that the September 2015 application was made without notice. It may be relevant to note that two reasons for this course were set out in paragraph 42 of the 25 September skeleton argument:

42.1

Without being in possession of the relevant property … , the Claimants are unable to confirm that the approach to ‘Oscar’ emanates from Mr Ruhan, so it would be premature to involve and – by necessity – accuse the Defendant at this stage.

42.2

Assuming that the approach to ‘Oscar’ does emanate from Mr Ruhan, were he to be given notice of the hearing, the Claimants would never be able to discover that it was in fact Mr Ruhan who was behind the approach, since it may be assumed that he would seek to prevent ‘Oscar’ from providing the Claimants with the relevant property/material which would evidence his involvement in the serious misconduct described above. For obvious and well-founded reasons, the Claimants have serious concerns that, were ‘Oscar’ to come to feel threatened, he would disappear easily and without trace, leaving the Claimants without the evidence they require. In these circumstances, to give notice would defeat the ends of justice.

The 25 September skeleton argument continued at paragraph 43:

43.

The Claimants are mindful of their duty of full and frank disclosure: it is well-established that an applicant who applies for an interim remedy without notice to the respondent is under a duty to investigate the facts and fairly to present the evidence on which they rely. To this end, Ms Irving addresses all conceivably relevant points in paragraphs 45 to 54 of her affidavit. While it is by no means certain at this stage who the proper respondent in due course might be, the Claimants have approached their duty of full and frank disclosure on the basis that there is strong circumstantial evidence that it is Mr Ruhan, for the reasons given. Accordingly, they have explained the concerns expressed by various judges regarding the ‘no-holds barred’ approach taken by both sides to the original dispute between them.

In his oral submissions on 25 September, Mr Drake stated as regards the matters giving rise to criticisms by Cooke J:

… my clients were able to obtain control of a number of assets that are in dispute. It is said in relation to that that we have stolen - helped ourselves - to more than we have lost, number one, and, number two, it is said by Mr. Ruhan that those that assisted the claimants in achieving that end have breached all manner of contractual and fiduciary duties owed to him. That is the centre of the dispute in the main proceedings.

On the same topic, and more generally so as to include the criticisms of the claimants described by Ms Irving at paragraph 49(a) of Irving 1, Mr Drake stated:

It must also be said, my Lord, that these proceedings are hard fought on both sides and that both sides have been criticised for the way in which they have conducted the proceedings, us included, not only here but elsewhere.

In the course of Mr Drake’s oral submissions I asked whether, in relation to the duty of disclosure, there was anything that Mr Drake needed to add to what had been said in his skeleton argument and Irving 1. In response Mr Drake stated “for the sake of abundant caution” that the particular paragraphs in Irving 1 were paragraphs 25 to 50, adding:

… one or two of these matters jump off the page, with respect to your Lordship’s consideration today. They are, for example, at para.46, that Dr. Smith is a twice convicted fraudster. I raise that in particular because, in some measure, you are relying on Dr. Smith’s take, albeit indirectly, of what evidence Oscar is providing, albeit that it is corroborated, but that is not my particular concern at the moment, but yes, and also Mr. Power, at para.48, who is involved in the Oscar goings on, if I can put it that way, was also convicted of insider trading in 2009. I have not taken you, my Lord, to Mr. Justice Cooke’s judgment, but it is well to note starting, first, on p.21, where judicial criticisms have been made of my clients or people in my clients’ camp, the first is by Registrar Barber in the BVI -- I am sorry, Registrar Barber in England and Cooke J in England; in particular Mr. Justice Cooke was very critical of the claimants in the proceedings before him for failing to disclose certain matters. Of course, in sub-para.(c) on p.22, what is good for the goose is good for the gander. I should draw to your attention as well, my Lord, what is said at para.50, where Mr. Ruhan himself has made complaints about the conduct of my clients in the respects there set out, which we deny.

My Lord, those are the particular matters that I want to draw the court’s attention to in relation to what your Lordship is being asked to do today.

In section D4.2 below I deal with the content of the September 2015 order. In that regard I mention some of the points of detail in the order and the reasons for them. As to the main thrust of the September 2015 order, I describe the broad reasons for making that order in section D4.3.

The recitals to the September 2015 order recorded that the applicants had given undertakings set out in schedule 1 to the order. I return to those undertakings at the end of this section.

Paragraph 1 of the September 2015 order provided that, subject to such further order as the court might make, the application was to be heard in private and court records relating to the application were to be treated by the court and all other parties accordingly. The order specified that such records included the application notice and all evidence filed in support, the skeleton argument of counsel in support and the September 2015 order itself. As noted in section A above, the underlying reason for this paragraph was that the applicants asserted that publicity would defeat the object of the application. Paragraphs 42.1 and 42.2 of the 25 September skeleton argument (see section D3.7 above) were relevant in that regard. As noted in section D3.4 above, although Mr Ruhan had been told that “the latest incident” had occurred on 3 September 2015, there had been no explanation of what that incident involved. Accordingly, if the claimants’ account was accurate and Oscar himself was being truthful, nothing said by the claimants on 25 September 2015 suggested that Mr Ruhan, or anyone else other than the claimants and their advisers and the police, would be aware of Oscar’s approach to Dr Smith as described by Ms Irving.

Paragraph 2 of the September 2015 order conferred authority on “Authorised Persons” to take certain actions with respect to “Relevant Property”. The Authorised Persons were those named in schedule 2:

“Relevant Property” was defined in paragraph 4 of the order to include:

4.1

any screen shots and other data recording the chat room conversations between the individual identified as “Oscar” in the evidence supporting this application and the person or persons who have issued him with instructions to carry out the file-drop of images as described in that evidence (“the Client”);

4.2

the images and all other data, including metadata, provided to Oscar by the Client;

4.3

any data evidencing and/or relating to the source of the communications emanating from the Client and/or the geographical location from where those communications were made;

4.4

any data associating Mr Ruhan, Mr Lopez and/or Mr Hobday (each of whom is identified in the evidence supporting this application) with the data described in the foregoing categories 4.1 to 4.3 above, and/or evidencing one or more of those associations.

Paragraph 3 of the September 2015 order, subject to two exceptions, limited the authority given by the order to action taken in England and Wales. It is convenient to set out at this stage the terms of paragraph 2 of the order, from which it will be seen that the exceptions related to the provision of relevant property and reports to police officers, prosecuting authorities, or courts in the United Kingdom or Jersey. The actions with respect to the Relevant Property that were authorised by paragraph 2 of the order were:

2.1

to detain, to take custody of, and/or to preserve the Relevant Property;

2.2

to transfer the Relevant Property to:

(a)

any other Authorised Person; and/or

(b)

any police officer, any prosecuting authority, or any court, in the United Kingdom or Jersey;

2.3

to inspect the Relevant Property;

2.4

to carry out experiments on or with (including to interrogate the data held on) the Relevant Property;

2.5

to report upon the same to:

(a)

any other Authorised Person; and/or

(b)

any police officer, any prosecuting authority, or any court, in the United Kingdom or Jersey; and

2.6

to do all such things as are incidental to each of the matters set out in paragraphs 2.1 to 2.5 above.

Schedule 1 contained three undertakings. The first two undertakings were, to my mind, needed because it was not possible on 25 September 2015 to fix a return date. This had the consequence that there was a question which needed to be kept under review: namely, whether a stage had been reached when the order, the reasons for it and what happened in consequence, should be notified to Mr Ruhan or any other individual or entity. For that reason, the first and second undertakings were in these terms:

1.

To restore the application, without delay, should there be reason to think:

(a)

that any order made by the Court in response to the application ought to be set aside, stayed, or varied; or

(b)

that any person should be notified of the application, any order made by the Court in response to the application, or any other matter relating to the application.

2.

To restore the application, for consideration of such further directions as the Court may deem appropriate, no later than 26 October 2015 or such other date as the Court may direct.

The third undertaking concerned a transcript of the proceedings. In the circumstances of the present case, it seemed to me that the complications of the underlying facts were such that it would be desirable to make specific provision for corrections to that transcript. The third undertaking was framed in appropriate terms for that purpose.

I gave short reasons for making the September 2015 order in a judgment given orally during the course of the hearing on 25 September 2015. In that judgment I noted that the reasons for granting the order would appear from the discussion which had taken place during the course of the hearing, as set out in the transcript which I had ordered. I now explain my reasons in more detail.

The account given of the approach by Oscar, of what he said, and of what he proposed, appeared to me credible. In that regard it did not seem to me that I could rely on uncorroborated evidence of Dr Smith. Indeed I had no direct evidence from Dr Smith. What I had was direct evidence from Ms Irving. She had met Oscar and her considered opinion was, as set out in section D3.7 above, that she thought it “very unlikely” that he was “making this up”.

Ms Irving expressly stated in paragraph 45 of Irving 1 that she was proceeding on the basis of a duty of full and frank disclosure to the court, and that her affidavit discharged that duty. In the light of the information she set out in paragraphs 46 to 55, I thought it unlikely that Ms Irving had held back any relevant information.

In those circumstances there appeared to me to be substantial grounds for thinking that someone was attempting to use the services of “Oscar” in order to cause injury to Pro Vinci and the claimants and those associated with them, and to prejudice a fair trial of the main action. As to matters identified by Ms Irving as falling within the duty of full and frank disclosure, it was the information she set out in relation to Dr Smith which led me to conclude that I could not rely upon his uncorroborated account. The other matters disclosed were potentially troubling, but on the evidence before me they did not appear to indicate that what Ms Irving had stated in her affidavit would be unreliable. Accordingly I concluded that the interests of justice would be served if the claimants were able to find out whether there was indeed somebody who was attempting to make use of the services of “Oscar” in one or more of these ways, and if so who it was. The claimants were concerned about their exposure to criminal liability. It seemed to me that Mr Drake had correctly identified power to make the order sought under CPR 25 or the inherent jurisdiction of the court. It also seemed to me that Mr Drake had correctly identified:

Weighing these considerations, along with all other relevant material in Irving 1, the 25 September skeleton argument, and the oral submissions at the hearing on 25 September 2015, I concluded that grant of the order would further the overriding objective.

In my oral judgment I expressed that overall conclusion in this way:

4.

It will be apparent that the claimants are concerned that those who take the steps which are proposed to be taken may expose themselves to criminal liability. I make it clear that this court, when making the orders sought under CPR 25 and to the extent necessary under the inherent jurisdiction of the court, cannot and is not pronouncing upon whether any particular individual is guilty or not guilty of any particular offence. What the court is satisfied of is that, on the basis of the material put before the court today, the actions which the court authorises are actions which appear to the court to be desirable to be taken in the interests of justice and in furtherance of the overriding objective.

5.

It is that overriding consideration which has led me to conclude that it is appropriate to grant the orders that are to be made. I am concerned to ensure that, if certain circumstances should arise, appropriate steps will be taken. Those circumstances will arise if there is reason to think that the orders as made by the court ought to be set aside, stayed or varied or that any person should be notified of the application, any order made by the court in response to the application or any other matter relating to the application. For that purpose there will be an undertaking by the applicants in that regard.

Events after 25 September 2015

I received information from the applicants about events after 25 September in four stages. Section E2 below describes the material that I received in relation to the proposed hearing that was scheduled for 26 October 2015. As explained in section E2, that hearing was postponed to 27 November 2015. Section E3 below deals with material provided for and at the postponed hearing on 27 November 2015. That hearing was adjourned part heard on the afternoon of 27 November 2015. It resumed on 30 November 2015. I deal with material provided for and at the hearing on 30 November 2015 in section E4 below. That hearing also was adjourned part heard. It resumed on 10 December 2015. In section E5 below I deal with material provided for and at the hearing on 10 December 2015. The hearing on 10 December 2015 was adjourned, and resumed on the afternoon of 14 December 2015. In section E6 below I deal with material provided for and at the hearing of 14 December 2015.

On 23 October 2015 my clerk received a hand delivered letter of that date from Stewarts Law (“the 23 October letter”). The 23 October letter stated at paragraph 4 that Stewarts Law had instructed Dr Hunton to examine the “Relevant Property” as defined in paragraph 4 of the 25 September order. Paragraph 5 of the letter stated:

5.

As the Court will see from paragraph 5.2 of Dr Hunton’s report, 6GB of data contained within the Relevant Property was found by Dr Hunton to have been encrypted with an Advance Encryption Standard (AES) encryption algorithm with a 256bit encryption key. Dr Hunton’s view is that “due to the level of encryption offered by 256bit AES it is unlikely that the data can ever be accessed without a valid password”. Dr Hunton’s analysis of the remaining (unencrypted) data, has proved inconclusive because of a lack of supporting data or further information (see paragraphs 4.4, 4.8, 4.9, 6.1 and 7.1 of his report). Our clients understand from Oscar that the supporting data and missing information is contained in the encrypted area of the Relevant Property.

In these circumstances Stewarts Law asked that there be a further order which would vary the 25 September order in two main respects. The first was described in paragraphs 6 and 7 of the 23 October letter:

6.

For these reasons, the Claimants would like to instruct a further expert to try to decrypt the 6GB portion of the Relevant Property that is encrypted so that this new expert can then provide the decryption key to Dr Hunton; and Dr Hunton can then continue his analysis of the Relevant Property and produce a properly informed report. We are instructed that the Claimants have identified Mr Alex Oslov, whom they wish to instruct, as an expert on cryptography who may have decryption skills and access to decryption techniques and/or technology beyond those of or available to Dr Hunton.

7.

The Claimants would therefore respectfully request that the Order be varied as follows: Schedule 2 to the Order (Persons Authorised by this Order) should be varied to authorise Mr Oslov as an authorised person. We suggest this variation should be effected by adding a new paragraph 4 to Schedule 2 in the terms “Mr Oslov or any of his employees acting in the course of their duties.”

The second main variation sought concerned a proposal to put back the hearing scheduled for 26 October 2015 so that it would take place no later than 27 November 2015. In this regard the 23 October letter said at paragraph 9:

9.

By virtue of paragraph 2 of Schedule 1 to the Order, the Claimants undertook to “restore the application, for consideration of such further directions as the Court may deem appropriate, no later than 26 October 2015 or such other date as the Court may direct.” In light of the lack of progress in examining 6GB of data contained within the Relevant Property, we are of the view that it would not further the overriding objective, having regard to the Court’s resources and the costs involved, to restore the application at this time. Therefore, we respectfully request that in accordance with paragraph 2 of Schedule 1 to the Order, the Court directs that the application be restored for a hearing on 27 November 2015, the proposed additional encryption expert will have been able to decrypt the Relevant Property and Dr Hunton will have been able to provide a properly informed report, allowing the Claimants to report back to the Court with more complete findings. If that is not the position by that time, the Claimants will write again to update Mr Justice Walker on the position.

The 23 October letter was accompanied by the expert report of Dr Hunton dated 18 October 2015, along with a draft order. After consideration of those documents and what was said in the 23 October letter, I concluded that the appropriate course was to make the order sought by Stewarts Law. I accordingly made that order on 26 October 2015, with the result that no hearing took place that day.

Prior to the hearing on 27 November 2015 I indicated that I proposed to give directions for that hearing. As explained in section E3.2 below, I invited proposals for such directions, but when the proposed directions were due they were not provided. Instead, Stewarts Law suggested that there would be no “useful purpose” in proceeding with the proposed hearing on 27 November 2015. Section E3.3 explains that I remained of the view that the hearing should take place on 27 November 2015, and refers to Annex 1, which sets out the directions which I gave for that purpose. Section E3.4 describes a second affidavit sworn by Ms Irving on 26 November 2015 for that hearing. Two skeleton arguments were prepared for the hearing. They are described in section E3.5. The second of those skeleton arguments concerned matters set out in a third affidavit of Ms Irving, which I describe in sections E3.6 and E3.7. I describe in section E3.8 what happened at the 27 November hearing.

An email sent by my clerk to the claimants’ legal team proposed that there should be directions for the hearing on 27 November 2015. It was suggested that those directions should, among other things, make provision for submission to an appropriate police officer of relevant material no later than noon on Wednesday 18 November 2015. The claimants’ legal team were asked to provide proposed directions, along with a note from counsel, by 10am on 17 November 2015.

The directions sought were not provided on the morning of 17 November 2015. Instead, a letter of that date was emailed shortly after 10am that day (“the 17 November letter”). It stated:

… we do not consider that it would serve any purpose to restore the application on 27 November 2015. As the Court is aware from our letter dated 23 October 2015, our clients have engaged Mr Alex Oslov to provide assistance to Dr Hunton, our clients’ forensic expert who was tasked with verifying the authenticity of the evidence which is said to support the allegations made by ‘Oscar’, as set out in Ms Irving’s affidavit. In particular, Mr Oslov is seeking to assist Dr Hunton by deciphering the encryption protecting the data provided to our clients by ‘Oscar’. Pursuant to the Court’s order of 26 October 2015, Mr Oslov (“or any of his employees acting in the course of their duties”) has been added to the list of authorised persons set out in Schedule 2 to the Court’s 25 September 2015 order. However, Mr Oslov’s attempts to decrypt the data are still ongoing, and we learned yesterday that it will take a further 30 days (approximately) for the supercomputer which is to be utilised for this purpose to complete the attempted decryption process.

Accordingly, at the present time the position regarding the authenticity of the evidence supplied by ‘Oscar’ is still inconclusive and there has been no advance in our knowledge since the 25 September 2015 order. We are also mindful of the undertakings given in Schedule 1 to the 25 September 2015 order, and we confirm that do we not have reason to think that any further variations to that order are required, that that order should be set aside or stayed, or that any person should be notified of the application, the Court’s orders or any other matter relating to the application.

In these circumstances, we take the view that it would not serve any useful purpose to proceed with a hearing on 27 November 2015, and would therefore respectfully suggest that the hearing be adjourned. In light of the 30-day period advised by Mr Oslov as the approximate timeframe required for completion of his analysis, we suggest that the matter be re-listed for the last week of term … .

After considering what was said in the 17 November letter I remained of the view that the hearing should take place on 27 November 2015. Accordingly I requested proposed directions for the 27 November hearing. Proposed directions were duly provided by Ms Martin late on 17 November 2015. Certain revisions were canvassed with the claimants’ legal team. Directions (“the 18 November directions”) were then given on 18 November 2015. They required, among other things, that the applicants lodge a second affidavit of Ms Irving informing the court in relation to various matters. One of those matters, at paragraph 4.3 of the directions, was, “any comments or concerns expressed by the police”.

The 18 November directions were set out in an order of that date. For convenience, the contents of that order are set out in Annex 1 to this judgment.

A second affidavit was sworn by Ms Irving on 26 November 2015 (“Irving 2”). In accordance with the 18 November directions, the first substantive matter dealt with in Irving 2 concerned the delay in verifying the authenticity of the data provided by Oscar. Ms Irving stated at paragraphs 6 to 10 of Irving 2:

6.

On 1 October 2015 I met with ‘Oscar’ at Pro Vinci’s offices, where he provided me with:

a.

a black 8 GB USB thumb drive with ‘Integral USB 3.0’ displayed on the side; and

b.

a mock yellow cigarette lighter, which concealed a 16GB micro SD storage card,

which he said contained the relevant evidence, including the child pornography (the “Devices”).

7.

I was told by Oscar that in order to protect the confidentiality of the information on the 16GB micro SD storage card, he had encrypted it with an Advance Encryption Standard (AES) encryption algorithm with a 256-bit encryption key. Stewarts Law’s Adam Erusalimsky, who was present at that meeting, asked Oscar to provide us with the encryption password. In response, Oscar said that “any expert worth his salt” would be able to unlock and extract the data and for that reason he did not provide me with a password or any other indication as to how to gain access to the files.

8.

I arranged for the Devices to be provided to Dr Hunton, … Dr Hunton found that (as Oscar had said) 6GB of data contained on one of the Devices (the 16GB SD card concealed within a mock cigarette lighter) had been encrypted with an AES encryption algorithm with a 256-bit encryption key, but he concluded that “due to the level of encryption offered by 256bit AES it is unlikely that the data can ever be accessed without a valid password”. Further, Dr Hunton found some unencrypted data, but his analysis of this proved inconclusive because of a lack of supporting data or further information (see paragraphs 4.4, 4.8, 4.9, 6.1 and 7.1 of Dr Hunton’s report at SCI-2/8-10).

9.

In light of Dr Hunton’s view that we required a password to access the data, I tried to contact ‘Oscar’, but the phone was dead as if it had been disconnected. This did not surprise me, as he had told me previously that he would be getting rid of this phone and contacting me from a new number once he got that up and running. He had changed his number in this way twice before and so it did not seem unusual at that time. However, as the days went past I started to get concerned as to why he was not calling me given he had said he would contact me with his new number. It now seems that there may be another explanation for that, as I explain further below.

10.

The Applicants, therefore, considered whether there were any other methods of gaining access to the data contained in the Devices. It was decided that a further expert should be instructed to try to decrypt the encrypted data, and, if successful, to provide the decryption key to Dr Hunton for Dr Hunton to continue his analysis of the data and produce a more comprehensive report.

The second substantive matter dealt with in Irving 2 concerned the assistance being provided by Mr Oslov to Dr Hunton. Paragraph 11 of Irving 2 described what had happened in relation to Mr Oslov prior to the 23 October letter in this way:

11.

… on or around 12 October 2015 my colleague Darren Woodhead telephoned an agent who recommended Mr Alex Oslov as an expert in cryptology. Mr Oslov’s agent informed Mr Woodhead that he may be able to recover further information from the Devices.

Paragraph 12 of Irving 2 recorded the request for, and making of, my order on 26 October 2015. What happened after my order was described in paragraphs 13 to 17:

13.

… arrangements were made for Mr Oslov to attend the offices of Stewarts Law in order to review the Devices, which he did on 2 November 2015. Mr Oslov was able to retrieve a zip file, but it was password protected (though not encrypted). According to Mr Oslov, he would be able to use “brute force” methods to ascertain the password used to protect the zip file and to gain access to it, which he said requires the use of a super-computer to check every possible combination of characters until it alights upon the right password. At that meeting, Mr Oslov reported that this process would take between 30 – 45 days, which means that this will not be achieved until some point in December 2015.

14.

Furthermore, Mr Oslov also considers that there is a very good chance that the password for the zip file will be the same as the password used to encrypt the rest of the encrypted part of the data. This is based on Mr Erusalimsky’s understanding from the meeting with Mr Oslov that Mr Oslov believes – given the general sloppiness of Oscar’s handing of the data – it is quite likely that Oscar would have used the same password to protect the password-protected (but unencrypted) zip file as he would have used to protect the password-protected and encrypted remainder of the drive.

15.

In addition to Mr Oslov, I understand from Mr Erusalimsky that on 4 November 2015 he contacted a Mr Patrick Madden, who I had recommended to him as a computer forensics specialist based on previous experience of using his company. I had spoken to Mr Madden about the matter and he had some ideas for obtaining access to the encrypted data, which Mr Erusalimsky considered he should discuss with Dr Hunton. To this end, later on 4 November 2015 Mr Erusalimsky arranged a conference call between the two experts, which took place on 5 November 2015. The relevant correspondence is appended hereto, at SCI-2/49-50.

16.

I understand from Mr Erusalimsky that Mr Madden asked Dr Hunton various questions during the call, which Dr Hunton answered. Later that day Mr Erusalimsky emailed Dr Hunton to request that he provide Mr Madden “with a full Encase file and folder property export showing the full properties of all the files and folders referenced on the two devices” (SCI-2/51). In addition, he asked Dr Hunton to confirm whether there were any configuration or licence files for the Rohos software, or other indications of the licence status of that software. I understand from Mr Erusalimsky that the thinking behind the latter request was that it might provide some clue as to ‘Oscar’s’ identity.

17.

Following his call with Dr Hunton, Mr Madden contacted me by phone to tell me that he thought that Dr Hunton had covered off all points and that he (i.e. Mr Madden) could not be of further assistance.

I noted earlier that my directions required that Irving 2 should deal with, among other things, comments or concerns expressed by the police. This was the third substantive matter dealt with in Irving 2. As regards such comments or concerns prior to the 18 November directions, paragraph 18 of Irving 2 said this:

18.

Police Constable Danny Shipston was informed of the ‘Oscar’ situation on 4 September 2015. He was concerned and expressed regret that previous complaints we had made to the police had not been taken more seriously. The police took a statement from me and filed a report, with crime reference number 6538724/15, but they did not take any substantive action and just made me feel like another statistic.

At paragraphs 19 to 21 Irving 2 described material which, in accordance with the 18 November directions, had been sent to relevant officers of the Metropolitan Police and of the criminal investigations department of the State of Jersey Police. Paragraph 22 recorded that Stewarts Law had not yet received any comments from either police force in relation to the material that had been sent to them.

The fourth substantive matter dealt with in Irving 2 concerned further correspondence between Stewarts Law LLP and Dr Hunton and/or Mr Oslov after 18 October 2015. Ms Irving exhibited at “SCI 2” communications between Stewarts Law and Dr Hunton relating to a request that Dr Hunton create “thumb drives” of the relevant data to be provided to Mr Oslov. Ms Irving stated that there had been no written communications with Mr Oslov, adding:

23.

… I understand from Mr Woodhead, who is the member of staff at Pro Vinci who has been responsible for liaising with Mr Oslov in relation to this matter, that all communications with him were by telephone or in person.

The final substantive matter dealt with in Irving 2 was headed “Further relief sought by the Applicants at the 27 November 2015 hearing”. In that regard Ms Irving described, in paragraphs 24 and 25 of Irving 2, the position both in relation to the restored application and in relation to what she described as “further related interim relief”:

24.

In a letter to the Court dated 17 November 2015 (SCI-2/52-53), Stewarts Law explained that since the position regarding the authenticity of the evidence supplied by ‘Oscar’ was still inconclusive and our knowledge in this regard had not been advanced since Mr Justice Walker’s order of 25 September 2015, the Applicants’ preference was that the hearing scheduled for 27 November 2015 be adjourned.

25.

While the status of the Applicants’ knowledge in this regard is unchanged, and it remains the case that no relief will be sought in relation to the restored application at the forthcoming hearing, the Applicants will be seeking further related interim relief, for the reasons I shall explain in a further affidavit which will be sworn and lodged in advance of the hearing on 27 November 2015.

Two skeleton arguments were prepared by Mr Drake and Ms Martin for the hearing on 27 November 2015. The first (“the 26 November skeleton argument”) concerned the restored application. It summarised what had been said in Irving 2 and suggested that the September 2015 application be relisted for the last week of term.

The second skeleton argument, although it bore the date 26 November 2015, was received by me on 27 November 2015. I shall therefore call it the “27 November skeleton argument”.

The 27 November skeleton argument was prepared under great pressure of time. It is convenient to describe it by reference to eight main sections, although they were not explicitly identified or numbered in that way. The first main section was an introduction which explained that it dealt with further related interim relief (“the 27 November proposed interim relief”) sought by the claimants. It noted that the further related interim relief was the subject of a third affidavit (“Irving 3”). Irving 3 was sworn by Ms Irving on 27 November 2015.

What I have called the second main section comprised paragraphs 4 to 14 of the 27 November skeleton argument, under a heading “recent events”. This section summarised events set out in Irving 3, which I deal with in section E3.6 below. For present purposes, I note that these events are described in Irving 3 as beginning with a telephone call received by Ms Irving on Sunday 22 November 2015 from an individual who introduced himself as “Steve Fiddler”. The 27 November skeleton argument referred to this individual as “Mr Fiddler”, and I shall do the same. Paragraphs 6 to 14 of the 27 November skeleton argument stated:

6.

Mr Fiddler told Ms Irving that he knew Mr Harry Harvey (who Ms Irving knows to be a former business associate of the First Defendant, Mr Ruhan) and that he had been put in touch with Oscar by a mutual friend.

7.

Ms Irving’s initial impression from her telephone calls with Mr Fiddler was that he was proposing to act as an intermediary to re-establish contact between Oscar and Ms Irving and her colleagues. It later became clear that he had a sinister purpose.

8.

When Ms Irving and Dr Gerald Smith met with Mr Fiddler at a London café on 24 November 2015, he showed them a video recording on his mobile telephone of Oscar reading from prompt cards (which the group continued to watch once they had relocated to Pro Vinci’s offices) (“the Video Recording”).

9.

On the Video Recording, Oscar said that he had been contacted by Dr Smith in August and informed that Dr Smith wanted to place child pornography on to his own computer and make it look like somebody else had done it.

10.

‘Steven Fiddler’ is not an alias, since prior to the meeting Ms Irving had located Companies House records for a Mr Steven Richard Fiddler, with the date of birth “March 1967”, director of Aodhan Limited, and a correspondence address of 3 Beech Lane, Wilmslow, Cheshire. At the meeting, Mr Fiddler confirmed that that was him.

11.

When Dr Smith asked Mr Fiddler what he wanted from them, he responded that they needed to watch the rest of the Video Recording. He also said that Oscar wanted to be protected from them.

12.

Later that same day, Ms Irving received a phone call from Mr Fiddler. He said that he had been told by Mr Harvey that Dr Smith had said that Mr Fiddler had threatened Dr Smith during the meeting. He said that he did not want anything further to do with Dr Smith or Ms Irving and that he would advise Oscar to refer the matter to the authorities.

13.

The impact of these events is described by Ms Irving in Irving 3, paragraph 19:

I may have been engaging in wishful thinking but, notwithstanding our inability to get past the encryption, until I saw the video described above, at the back of my mind I still hoped Oscar might not have defrauded us and that there was some good reason why he had not stayed in touch with us.

14.

The Applicants’ loss from Oscar’s suspected fraud is at least £130,000, which comprises Oscar’s £100,000 fee for supplying the material to the Applicants, and £30,000 which Oscar said that he required in order to purchase specialist equipment. The Applicants have also incurred fees instructing (inter alia) forensic computer and encryption experts.

What I have called the third main section comprised paragraphs 15 to 18, headed “The Relief Sought”. Paragraphs 15 and 16 gave a general description of what was said to be the applicants’ “primary application”. This was an application which:

… would seek to compel Mr Fiddler to disclose (at least) Oscar’s identity…

This aspect of the 27 November new interim relief was described in the 27 November skeleton argument as “Norwich Pharmacal” relief, using a well known shorthand for the decision of the House of Lords in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133. The court was asked to make an order against Mr Fiddler in that regard without notice to Mr Fiddler, this being something which it was said could be done on a “basis analogous to that in Bankers Trust Co v Shapira [1980] 1 WLR 1274”. If the court were not minded to make a without notice order, then the applicants proposed to seek an early date for a hearing, on notice to Mr Fiddler, of an application for “standard Norwich Pharmacal relief”.

The other aspect of the 27 November new interim relief dealt with in the third main section concerned orders which the applicants sought in any event on a without notice basis. These orders would require:

… that Mr Fiddler preserve and retain both the Video Recording and his mobile telephone containing the Video Recording, until the Applicants have obtained a copy of the former, and associated relief.  

The third main section explained that these orders were sought under CPR 25.1(1)(c)(i) and CPR 25.1(1)(c)(ii). Paragraph 18 of the 27 November skeleton argument added that if the court were not minded to grant relief under CPR 25.1(1)(c), the Applicants seek an order for pre-action disclosure under ss 33-34 of the Senior Courts Act 1981, pursuant to CPR 31.16(1).

What I have called the fifth main section of the 27 November skeleton argument was headed “Norwich Pharmacal relief”. Paragraphs 19 to 21 explained why the order sought in this regard should be made without notice. In addition to relying upon an analogy with Bankers Trust, it was submitted in paragraph 21 that:

… a without notice application is appropriate in circumstances where, in light of the astonishing events that have transpired, there must be a significant risk that Oscar will dissipate the Applicants’ funds if advance notice were given.

Paragraphs 22 to 31 of the 27 November skeleton argument discussed the basis for seeking, on what was described as “an inter partes basis”, an order that disclosure be made by Mr Fiddler. As it seems to me the analysis was equally applicable to an order made without notice. In particular, paragraphs 24 to 31 stated:

24.

The Applicants intend to seek Norwich Pharmacal relief against Mr Fiddler, on an inter partes basis, to compel him to disclose Oscar’s identity and address (if that is information in his possession), so that the Applicants may pursue Oscar in respect of one of more causes of action.

25.

The Civil Procedure Rules do not address Norwich Pharmacal relief in terms; however CPR 31.18 provides:

Rules 31.16 and 31.17 do not limit any other power which the court may have to order –

(a)

disclosure before proceedings have started; and

(b)

disclosure against a person who is not a party to proceedings.

26.

On the authority of Mitsui & Co, Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch); [2005] 3 All ER 511, CPR 31.18 merely preserves the Norwich Pharmacal jurisdiction and does not modify it.

27.

In the same case, the Court summarised the conditions that must be satisfied in order to obtain Norwich Pharmacal relief as follows (at [21]):

(i)

a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer; (ii) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and (iii) the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued.

28.

The suspected ultimate wrongdoer in this is case is Oscar. In light of what the Video Recording shows, it seems likely (and certainly arguable) that he has committed a wrong against the Applicants.

29.

The principle is not limited to torts and, at this juncture, as mentioned, the primary claim that the Applicants propose to bring against Oscar is one for deceit and breach of contract. The Applicants are confident that the elements of each cause of action would be established on the facts.

30.

There is a clear need for the order in the present case to enable a claim to be brought against Oscar. He needs to be identified before he may be sued, and there is no alternative and more appropriate method to obtain the information sought. The Applicants have no other contacts with any connection to Oscar; if they did, they would have pursued them.

31.

Finally:

31.1

there is no question that Mr Fiddler is able to provide the information necessary to enable the ultimate wrongdoer (Oscar) to be sued; and

31.2

the facilitating the wrongdoing requirement may be satisfied where there is some kind of relationship between the wrongdoer and the party from whom disclosure is sought, and this is not a situation where Mr Fiddler could be called a ‘mere witness’.

What I refer to as the sixth main section of the 27 November skeleton argument concerned the second aspect of the 27 November new interim relief. The orders sought under CPR 25.1(1)(c) were set out in paragraph 32 as being that:

32.1

Mr Fiddler preserve and retain both the Video Recording and his mobile telephone containing the recording, until the Applicants have obtained a copy of the former;

32.2

Mr Fiddler deliver the relevant mobile telephone (including any relevant data storage devices contained therein) to the Applicants, via the Applicants’ solicitors, Stewarts Law;

32.3

Mr Fiddler provide the Applicants will all necessary information, codes and passwords that they may require in order to access the Video Recording;

32.4

Mr Fiddler provide the Applicants with the power supply cables and cognate devices that they may require to render the relevant mobile phone functional and operational; and

32.5

if the relevant mobile phone no longer exists, or is no longer in Mr Fiddler’s possession, or if the Video Recording is no longer stored on the device, Mr Fiddler take all necessary and reasonable steps to retain and preserve any additional copies of the Video Recording that Mr Fiddler has in his possession.

At paragraph 33 the 27 November skeleton argument added that consequential orders were also sought authorising the applicants:

33.1

to inspect the relevant mobile telephone for the purposes only of locating on the phone the Video Recording;

33.2

to view via the mobile telephone the Video Recording;

33.3

to take a copy of the Video Recording; and

33.4

to do all such things as are incidental to the foregoing.

Noting that CPR 25.2(2) permits an interim remedy to be granted before a claim has been made only if the matter is urgent, or it is otherwise necessary to do so in the interests of justice, paragraphs 36 and 37 of the 27 November skeleton argument stated:

36.

First, the matter is urgent. A recording is easily deleted, and the Applicants are concerned that if swift relief is not obtained in the form sought, there is a significant risk that Mr Fiddler will delete the recording to thwart a potential fraud claim.

37.

Second, the relief is necessary in the interests of justice, since the Video Recording would be a central piece of evidence in the prospective claim against Oscar.

The 27 November skeleton argument then turned to discuss the definition of “relevant property” in CPR 25.1(2). Paragraphs 41 to 45 stated:

41.

In the present case, the ‘relevant property’ is the mobile telephone on which the Video Recording of Oscar is located.

42.

The property in question is not, of course, yet “the subject of a claim”. It is, however, property “as to which [a] question may arise on a claim”, since if (as the Video Recording held on the phone appears to show) the Applicants have been subjected to a fraud at the hands of Oscar, they would have a claim against him in deceit – see above paragraph 29.

43.

Furthermore, while the Applicants have – at least – a potential claim against Oscar in deceit and breach of contract, they do not rule out other possible claims against other individuals. It is still not clear at this stage whether – if there was a fraud – Oscar was acting alone, or whether he was acting at the behest of another or others.

44.

The Applicants submit that the breadth of the language used in CPR 25(1)(c)(i) and CPR 25(1)(c)(ii), and the breadth of the Court’s discretion generally under the CPR and its inherent powers, is amply sufficient to allow the Court to grant the orders sought.

45.

While the Applicants concede that taking copies of relevant property is not expressly listed as one of the remedies in CPR 25.1(1)(c), the Applicants submit that copying the Video Recording is necessary in order to secure its preservation in this case. It is, therefore, incidental to the property’s preservation and properly caught within CPR 25.1(1)(c)(i).

At paragraph 46 the 27 November skeleton argument turned to the alternative mentioned in the third main section described above:

46.

In the alternative, the Court also has jurisdiction to make the order sought via CPR 31.16(1) and ss 33-34 of the Senior Courts Act 1981 for pre-action disclosure. The action here is the contemplated claim against Oscar to which: (a) the Applicants will (plainly) be a party; and (b) Mr Fiddler will likely be a party, as ‘likely’ is to be understood in that context: see eg Black v Sumitomo [2002] 1 WLR 1562; and Dunning v United Liverpool Hospital Board of Governors [1973] 1 WLR 586.

What I have called the seventh main section of the 27 November skeleton argument was headed, “Without Notice Application”. It stated at paragraphs 48 and 49:

48.

In the Applicants’ submission, it is appropriate that the application for orders under CPR 25(1)(c)(i) and CPR 25(1)(c)(ii) (alternatively, under CPR 31.16) has been made ex parte because of the risk that, if given advance notice of the application, Mr Fiddler would delete the Video Recording, and therefore the evidence of the potential fraud, before any order could be made. In these circumstances, giving notice would defeat the object of the application.

49.

The Applicants are mindful of their duty of full and frank disclosure: it is well-established that an applicant who applies for an interim remedy without notice to the respondent is under a duty to investigate the facts and fairly to present the evidence on which they rely. To this end, Ms Irving addresses a number of relevant points in paragraphs 45 to 50 of Irving 3.

The remainder of the 27 November skeleton argument, headed “Alternative Service” is what I have called the eighth main section. Paragraph 50 noted that the applicants had an address for the company of which Mr Fiddler is a director (see paragraph 10 as cited in my account of the second main section). However, there was a pending application to strike that company off the register. Paragraphs 51 and 52 proposed that in these circumstances an order might be made for alternative service by way of text message or voicemail message: see CPR PD 6A paragraph 9.3(2).

Under CPR 6.15(1) an order permitting service by an alternative method or at an alternative place may only be made where it appears to the court “that there is a good reason” to authorise service by a method or at a place not otherwise permitted by CPR part 6. In that regard, paragraph 52 of the 27 November skeleton argument stated:

52.

The Court may make such an order where there a “good reason” to authorise service by such a method. The Applicants submit that good reason is provided here when there is uncertainty as to whether documents served on Mr Fiddler at his business address would actually come to his attention there.

In this section I deal with all save one aspect of Irving 3. The aspect not dealt with in this section concerns Irving 3’s account of interaction with the police: this is dealt with in section E3.7 below.

Irving 3 described the first telephone conversation with Mr Fiddler (“the 22 November mid-afternoon call”) in paragraphs 5 to 8:

5.

On Sunday 22 November 2015, at approximately 14:29, I received a telephone call on my mobile from somebody who introduced himself as “Steve Fiddler”. I did not recognise the voice and did not know the name “Steve Fiddler”.

6.

Mr Fiddler introduced himself by saying that he knew Harry Harvey and wanted to speak to “Gerald [i.e. Dr Smith] about Oscar”. (I know Harry Harvey to be both a close friend of Andrew Ruhan’s former wife, Tania Ruhan, and a former business associate of Mr Ruhan. I also know Harry Harvey lives in Wilmslow, Cheshire, ...) Mr Fiddler said he had been contacted by “a mutual friend” who had introduced him to Oscar. He said that Oscar had divulged certain things to him “with regards to Gerald”, and that he (Mr Fiddler) thought it best to discuss these personally with Dr Smith. Mr Fiddler said that it was only in the last few months that he had been introduced to Oscar, but he recognised Dr Smith’s name as being the same Dr Gerald Smith who had been mentioned to him on many occasions by Harry Harvey. He went on to say that he had explained the situation to Harry Harvey and that Mr Harvey had given him a direct number for Dr Smith, but that he had tried this several times without success. (I subsequently sought confirmation of this from Harry Harvey, who denied that he had been contacted by Mr Fiddler in this regard.) Mr Fiddler said that Oscar had made attempts to contact me saying that he had called and left messages. I challenged him on this as I have no voicemail facility on my phone and Mr Fiddler then said that he meant text messages. I asked Mr Fiddler which number Oscar had tried to contact me from. He responded by telling me the last number that I had for Oscar. I confirmed that I had received no messages from Oscar on that number or at all and that in fact I had tried many times to contact Oscar on all of the numbers that I had for him, all of which were dead. Mr Fiddler then stated that this was his mistake and that perhaps it was another number. Mr Fiddler said he wanted to arrange a meeting with Dr Smith to discuss these matters.

7.

Although at this stage I thought there were some strange features to Mr Fiddler’s story, I had been trying unsuccessfully to contact Oscar since early October and therefore thought it was encouraging that Mr Fiddler had got in touch with us on Oscar’s behalf. I hoped that this would mean that we could get some answers to the outstanding questions we had wanted to raise with Oscar after Dr Hunton had carried out his initial review in October 2015.

8.

I discussed with Mr Fiddler whether a meeting would take place in London or Cheshire (where he said he was based). We agreed that I would check Dr Smith’s availability over the following days and call him back.

Ms Irving’s second and third telephone conversations with Mr Fiddler (“the 22 November late afternoon call” and “the 22 November evening call” respectively) took place later on Sunday 22 November 2015. They were described in paragraphs 9 and 10 of Irving 3:

9.

Later that day I called Mr Fiddler back … and explained that while Dr Smith and I were keen to meet him it would be much easier if he could come to London to meet with us. I offered to pay his travel expenses. I also asked if Mr Fiddler was in a position where he could ask Oscar to contact me. He said that he would pass on the message that I wanted to speak to him, but that Oscar was away until Tuesday and that he thought it was unlikely that he would want to get in contact until he returned.

10.

Mr Fiddler called me back later that evening to confirm availability for a meeting. We agreed that he would come to the Pro Vinci offices in London around lunchtime on Tuesday 24 November 2015. On that call he said that if our meeting went well he saw “no reason why Oscar should not resume contact” directly with us.

Ms Irving’s fourth telephone conversation with Mr Fiddler (“the 23 November evening call”) took place on the evening before the meeting. Ms Irving described it and commented upon it in paragraph 11 of Irving 3:

11.

At 18:01 on Monday 23 November 2015, Mr Fiddler called me as I was leaving the office. He said that he was just calling to confirm our meeting for the following day, but then he said “as it’s our first meeting, whilst I’m happy to come to London, I would prefer if we met at the coffee shop opposite your office where you met Oscar”. To my mind, this confirmed that Mr Fiddler knew Oscar since, other than Pro Vinci and our solicitors, only Oscar knew that we had met at a coffee shop opposite our offices. I confirmed I was happy to meet him at 1pm on Tuesday 24 November 2015 at the (Starbucks) coffee shop across the road from our offices.

At this stage Ms Irving set out some general observations, along with a particular observation about a Companies House enquiry and the result:

12.

As I have explained above, I believed that this meeting was a prelude to our resuming contact with Oscar, and that this would help us to get answers to the questions which remained unresolved following our last contact with Oscar. I should also add that I recorded each of my conversations with Mr Fiddler. In light of a number of events in and around this litigation, we at Pro Vinci have adopted a policy of recording telephone calls.

13.

In the morning of 24 November 2015, prior to meeting with Mr Fiddler, I checked Companies House to see if there were any records for a Steven Fiddler as Dr Smith and I wanted to know if we could find some way of corroborating that the person who had called me was indeed called ‘Steven Fiddler’. I found a record for a Mr Steven Richard Fiddler, date of birth “March 1967”, Director of Aodhan Limited, company number 09048122, with a correspondence address of 3 Beech Lane, Wilmslow, Cheshire, United Kingdom, SK9 5ER. I exhibit the Companies House record at (SCI-3/1-3). Harry Harvey lives in Wilmslow, the same district of Cheshire as Mr Fiddler’s company Aodhan Limited was registered.

Irving 3 explained that a meeting (“the 24 November meeting”) duly took place at 1pm on 24 November between Ms Irving, Dr Smith, and Mr Fiddler. In paragraphs 16 to 18 Ms Irving described how the 24 November meeting moved from Starbucks to Pro Vinci’s office, and the initial discussion at the office:

16.

In Starbucks, Mr Fiddler said he had a video to show us. He took out his phone and started to show the video to us. I could see that the video was of Oscar speaking but the café was noisy and we could not hear the audio. Mr Fiddler said that it was important that we heard what Oscar was saying, so we went over to Pro Vinci’s office with Mr Fiddler to watch it there.

17.

At Pro Vinci’s offices across the road, Dr Smith asked Mr Fiddler if he was the same person as the Steven Fiddler who is shown on Companies House as being a director of Aodhan Limited. Mr Fiddler confirmed that he was. Dr Smith asked Mr Fiddler if he was aware that there was an extant application to strike that company off the register of companies and Mr Fiddler confirmed that he was aware.

18.

Mr Fiddler explained that he had been introduced to Oscar because Oscar’s father had approached a mutual friend and asked Mr Fiddler to go and “resolve some issues”. Mr Fiddler also explained that he had done some work which had a connection to Mr Ruhan, in particular to a piece of litigation in which he had been employed to protect a party from “some nasty people”.

Paragraphs 19 to 22 of Irving 3 described the playing of part of the video at the 24 November meeting, and the remainder of that meeting:

19.

Mr Fiddler took his phone out and started playing the video. The video was indeed of Oscar. He was reading from prompt cards. He said that for the purposes of this video he would refer to himself as Oscar as that is the name we knew him by. He said that he had first been contacted by Dr Smith in August. At this point both Dr Smith and I objected, simultaneously saying “that’s not correct” and pointed out that we had not had any contact with Oscar before September and that it was Oscar that had contacted us. Oscar then said that he had been contacted by Dr Smith and told the camera that Dr Smith wanted to place child pornography on to his own computer and make it look like somebody else had done it. Dr Smith again objected and said there was no point in discussing this fabricated version of events and tried to stop the recording, at which point Mr Fiddler switched it off.

20.

Dr Smith then said to Mr Fiddler “do you think that you and Oscar are going to get away with this?” Mr Fiddler replied “I’m only going on what I’ve been told by Oscar, I’ve only heard one side of the story, I’m not on anyone’s side, I’m on my own side”. Dr Smith then asked Mr Fiddler “what is it that you want from us?” Mr Fiddler responded “you need to watch the rest of the video, then it will all become clear.” We repeated our question to Mr Fiddler as to what Oscar wanted. He replied that Oscar wants to be protected from us. Dr Smith and I said that we have no interest in Oscar himself. He contacted us and offered us his help. He met with our lawyers and gave them a statement. We paid him for a service, then he disappeared without doing what he said he would do because the disk he has given us is encrypted. I may have been engaging in wishful thinking but, notwithstanding our inability to get past the encryption, until I saw the video described above, at the back of my mind I still hoped Oscar might not have defrauded us and that there was some good reason why he had not stayed in touch with us.

21.

I then asked Mr Fiddler what it was that Oscar had given to us on the disk. I asked him if it was child pornography. He confirmed that it was. Dr Smith explained to Mr Fiddler that “we record everything”.

22.

Dr Smith repeated his question to Mr Fiddler as to what he wanted from us. Mr Fiddler responded by saying “I really think you need to watch the rest of the video, then it will all become clear.” The meeting was terminated shortly thereafter, having lasted in total around 20 minutes.

Paragraph 24 of Irving 3 described a telephone call to the police and an email that she sent them. At paragraphs 24 and 25 Ms Irving described a telephone call by Dr Smith to Mr Harvey (“the 24 November Smith/Harvey call”) and a further telephone call that she made to Mr Harvey (“the 24 November Irving/Harvey call”):

24.

Whilst I was on the phone to the police, I overheard Dr Smith making a call to Harry Harvey and ask Harry Harvey if he knew Mr Fiddler. After my call with the police, I asked Dr Smith whether Mr Harvey had confirmed that he knew Mr Fiddler and Dr Smith said that Mr Harvey had confirmed that he did.

25.

I then called Harry Harvey. I called Harry Harvey to ask who Steven Fiddler was and what his background was. Mr Harvey confirmed that he was “muscle for hire”. I know that Harry Harvey knows many of the ‘characters’ in the area and so it did not surprise me that Harry Harvey knew Mr Fiddler, as mentioned above.

Paragraph 27 of Irving 3 described a fifth telephone conversation between Ms Irving and Mr Fiddler. As will be seen, when describing that conversation Ms Irving made some additional observations:

27.

Later that day, i.e. Tuesday, 24 November 2015, I received another phone call from Mr Fiddler. He said that he had met Mr Harvey and that Mr Harvey had told him that Dr Smith had told Mr Harvey that Mr Fiddler had threatened Dr Smith and me during our meeting. Mr Fiddler said that he categorically denied he had threatened us and he wanted that denial recorded. I did not wish to engage with this conversation as I disagreed with Mr Fiddler’s categorisation of the earlier meeting but I did not want to get into a debate. I therefore just told him "I don’t know what to say” and that I did not want to talk about it. He said that he did not want any more to do with us and that he would advise Oscar to go to the authorities. Although it was concerning to me that Mr Fiddler was calling me even after we had made it clear we did not want to speak to him, it was at least reassuring that he was corroborating at least that Dr Smith had called Harry Harvey shortly after my and Dr Smith’s meeting with Mr Fiddler which confirmed to me that the man we met was indeed Steven Richard Fiddler and not somebody impersonating him.

Paragraphs 28 to 36 of Irving 3 described communications with the police. Ms Irving said that they included a telephone update at approximately 12:30pm, in which she was told that the police had spoken to Mr Fiddler but he refused to give any information to them voluntarily. Paragraph 37 of Irving 3 said that just under two hours later, at 14:29 on 26 November, she received a text from Mr Fiddler:

Gerald/Sinead

I can assure you that your attempts to intimidate me will prove fruitless. I’m fully aware of the fact that you have a close “working relationship” with the police. You may be rich and powerful but in my opinion you as well as being a convicted fraudster you are nothing but a lowlife criminal. You both belong in prison and I hope by the end of this sorry episode that is exactly where you end up. I repeat, I will not be intimidated.

Irving 3 describes further contact at this stage between Ms Irving and the police. For present purposes I need only note that paragraph 38 of Irving 3 records advice from the police:

I advise you break all communication with Mr Fiddler and ask him to remove your number from his telephone immediately.

Thereafter, at paragraph 41 of Irving 3, Ms Irving stated that she had ordered a new telephone number and had texted Mr Fiddler:

Please delete this number and do not make any contact with us again

It appears from page 16 of exhibit “SCI 3” that Ms Irving’s text was sent at 17:09 on 26 November, and that at 20:36 that day Mr Fiddler replied:

I’m also aware that you’ve been trying to find out where I live?? Feel free to send whoever you want. Every move you make is being logged. Whether it’s the police or your thugs for hire I repeat once again. I WILL NOT be intimidated.

In a section of Irving 3 headed “The Further Relief to be Sought”, Ms Irving said that relief was sought which would “enable the Applicants to commence proceedings against Oscar and use the video evidence in their claim against him.” She described the relief to be sought as an order for:

a.

the delivery up of Mr Fiddler’s mobile phone, and the video recording of Oscar in particular;

b.

the provision of information as to Oscar’s identity and address urgently.

The final section of Irving 3 was headed “Full and frank disclosure”. In this section Ms Irving said at paragraphs 47 to 51:

47.

I refer the Court to Irving 1, where I set out in detail a number of matters which I considered relevant to disclose – paragraphs 45-54. In addition to those matters, I add as follows.

48.

In the video recording, Oscar accuses Dr Smith of contacting him with a view to placing child pornography on to some computers. As such, Dr Smith’s credibility has been brought into question. In this regard I should mention that Dr Smith has two convictions for fraud and owes the Crown’s enforcement receiver over £40 million in respect of a Confiscation Order made following his last conviction for fraud. This has been pleaded in the Applicants’ Particular of Claims in the proceedings brought against Mr Ruhan.

49.

Further, the Applicants have agreed with Dr Smith that, in return for his cooperation and assistance with the Commercial Court proceedings, they will transfer to him 50% of the sums recovered in these proceedings (after deduction of their costs and expenses of the claim) up to the amount owing by Dr Smith under the Confiscation Order. Any such sum received by Dr Smith on this basis would be his realisable property as defined by section 71 of the Criminal Justice Act 1988, and thereby payable to Dr Smith’s Enforcement Receivers to discharge wholly or in part the Confiscation Order.

50.

This litigation has been described as “no holds barred” litigation. The proceedings between the Applicants and Mr Ruhan are bitterly contested and no expense has been spared by any party in litigating the case. The Applicants, Mr Ruhan and their associates have also engaged in related litigation in the BVI and the Isle of Man. The conduct of all the parties, including the Applicants, has been criticised by the Court. I list some examples in this regard in Irving 1, paragraph 49.

51.

I should also draw attention to the fact that Mr Ruhan has accused the Applicants and/or their associates of illegal behaviour as follows:

a.

On 16 October 2014 Mr Ruhan accused the Applicants and their associates of tipping off the Guardia Civil of Spain that he had illegal drugs on board one of his super-yachts, in an attempt to incriminate Mr Ruhan. Indeed, Mr Ruhan even suggested that the Applicants had planted the relevant drugs on his vessel, which the Applicants completely deny.

b.

Mr Ruhan has on one occasion complained that he is being tracked and under surveillance, another allegation which the Applicants completely deny.

After describing the Companies House record which she had found during the morning of 24 November 2015, Ms Irving stated at paragraph 14 of Irving 3:

14.

Since the initial contact from Oscar, I have always kept the police informed on developments given the unusual nature of the matter. I therefore emailed Police Constable Molden who has been overseeing this matter prior to my meeting with Mr Fiddler, at 9:54 that day. In that email, I explained that I had “received a telephone communication from someone who has been contacted by Oscar to make contact with us. He would like to meet with me today. Please can you arrange for someone to come to my office tomorrow to take a statement from myself and Darren regarding the latest incidents? Please let me know what time works.” (SCI-3/6)

It appears from page 6 of exhibit “SCI 3” that this email was copied to officers Morrison and Coletti. It also appears from that exhibit that officer Molden was not the first addressee of the email. He was the second of two addressees. The first addressee was Inspector Guy Ellwood.

After describing what happened at the 24 November meeting, Ms Irving stated at paragraph 23 of Irving 3:

23.

The first call I made after the meeting with Mr Fiddler was to the police: I telephoned Police Constable Tim Molden of the Metropolitan Police force, but there was no answer. I therefore emailed the police at 14:28 (SCI-3/5) and asked them to call me urgently.

It appears from page 5 of exhibit “SCI 3” that the email she sent the police was timed at 14:28. Like the earlier email that day, it appears to have been addressed to Inspector Ellwood and officer Molden, and copied to officers Morrison and Coletti.

It also appears from page 5 of exhibit “SCI 3” that officer Molden replied at 15:42 stating that he was “just going into another meeting”, and would send officer Coletti and another colleague to come and see her the following morning to take any further report. Ms Irving replied by email at 17:15 asking if it would be possible to see officer Molden the following day. He replied at 17:40 explaining that he was at a conference the following day, and asked for a time when officer Coletti and his colleague could visit. Ms Irving replied at 17:41 that “Any time would be good”.

Paragraph 28 of Irving 3 recorded that the police had attended Pro Vinci’s office at approximately 10:40am on 25 November, and had started by meeting Mr Woodhead, after which they took a statement from her, and that there was a later visit by the police when they collected the voice recordings that she had made of her calls with Mr Fiddler.

Ms Irving’s interactions with the police on 26 November were described later in Irving 3. In paragraphs 33 to 36 Ms Irving dealt with her interactions with the police prior to receipt of Mr Fiddler’s text on 26 November 2015:

33.

On 26 November 2015 at 10:24 I received an email (SCI-3/11) from Inspector Guy Ellwood of the Metropolitan Police following on from my provision to the police of the recordings of the telephone calls I had had with Mr Fiddler on 25 November 2015 as described at paragraph 27 above. His email stated (SCI-3/11):

… PC Johns and PC May attended your offices yesterday for 2-3 hours taking further details. I have spoken with PC May this morning who is now in possession of the memory stick which I understand contains voice recordings between Mr Fiddler and yourselves. I have asked him to telephone Mr Fiddler and arrange a meeting to discuss events referred to in these conversations and ultimately arrange for us to speak/contact Oscar Both have a number of investigations, but I have asked them to update you later today.

34.

In accordance with that email, I received an update by telephone at approximately 12:30pm. The update was to say that the police had spoken to Mr Fiddler, but he refused to give any information to them voluntarily. The police explained to me that there were, in theory, two options:

a.

ask Mr Fiddler to attend a voluntary meeting with the police; or

b.

arrest Mr Fiddler and interview him under caution.

35.

I discussed these options with PC May, who said he would have to check with PC Molden and he would come back to me.

36.

PC May then called me at 13:20 to tell me that he had spoken to Acting Inspector Guy Ellwood and that Guy Ellwood was seeking further advice from his superiors at CID and would come back to me.

After describing the text from Mr Fiddler, Irving 3 stated at paragraphs 38 to 40:

38.

I forwarded this text message to the police and the response I got from Inspector Guy Ellwood was in an email timed at 14:55 (SCI-3/13) that stated:

Sinead,

At your request, PC May has spoken with Mr Fiddler about his involvement with Oscar and ongoing events this morning. He has committed no offences by sending this text and there is no power of arrest for us to interview him. 

I advise you break all communication with Mr Fiddler and ask him to remove your number from his telephone immediately. 

The update will be copied into the report.

Regards

Guy

39.

This email made no reference to what PC May had told me about Guy Elwood making contact with CID. I therefore, sent Guy Ellwood an email at 15:21 (SCI-3/14-15) which stated the following:

Dear Guy,

To clarify, when I spoke with Thomas [i.e. PC May] earlier today, he confirmed that an officer had spoken with Mr Fiddler and that Mr Fiddler had confirmed that he would not be assisting the police in an informal situation.   

He also told me that you were going to speak with CID to get some advice on the following points:

1.

As Mr Fiddler has confirmed that he knows and can contact Oscar, yet is refusing to speak with you, is he not perverting the course of justice and aiding and abetting in connection with the fraud which the police have confirmed in writing they believe us to have been a victim of?  As you know, this matter has been reported with Action Fraud.

2.

Mr Fiddler confirmed that there was child pornography on the USB which Oscar handed to us.  As Mr Fiddler is refusing to cooperate with you, there must be a crime given the very serious nature of the content?  He is at the very least knowingly concerned with this matter.

I cannot see how you are unable to progress this matter given the disturbing nature of the content which has after all been confirmed by Oscar and Mr Fiddler.  I cannot believe that the Metropolitan Police would fail to miss out the opportunity on this type of lead into this heinous situation. 

I would be grateful for your further comments.

Sinead

40.

I received no response to this email, but at 15:45 PC May telephoned me to say that “Guy Ellwood had put in a call to CID but was yet to hear back from them”.

The 27 November hearing had been due to begin at 10:30am that day. The hearing was put back to 2pm to enable consideration of Irving 3 and the 27 November skeleton argument. At 2pm Mr Drake and Ms Martin appeared on behalf of the claimants.

In relation to the restored September 2015 hearing Mr Drake explained that Mr Oslov was still in the process of using a supercomputer in an attempt to find the password for the zip file. Mr Oslov’s hope was that the same password would apply to the encrypted material. Neither he nor anyone else had suggested any other way of identifying the password for the encrypted material. As to the Metropolitan Police and the Jersey Police, no response had yet been received to the material sent to them in accordance with the 18 November directions. The course proposed in relation to the September 2015 application was that this be revisited at a hearing in the second half of December.

Turning to the new material in Irving 3, Mr Drake commented that one view was that the claimants had been the subject of a clever, perhaps sinister, sting by Oscar. Mr Drake said that against Oscar the claimants had “a palpable claim” in deceit and breach of contract, and were considering their position.

In support of the 27 November proposed interim relief, Mr Drake submitted, in broad terms, that Mr Fiddler had facilitated a communication from Oscar to the claimants which demonstrated or went to the fact that a fraud had been committed by Oscar. Mr Fiddler had conveyed a message from Oscar that Oscar was not an ally and was going to say things entirely inconsistent with the true position. Accordingly it was appropriate that Mr Fiddler provide information as to the identity of Oscar so that the claimants could take action against Oscar, and the order should be made without notice to Mr Fiddler. Mr Drake added that the case of CHC Software Care v Hopkins and Wood [1993] FSR 241, cited by Lightman J in Mitsui & Co, Ltd v Nexen Petroleum UK Ltd [2005] EWHC 625 (Ch) as showing that such an order could be made against a wrongdoer. As to the proposed order in relation to the video, I drew Mr Drake’s attention to paragraph 8 of CPR practice direction 25A. Mr Drake’s response was that none of the 27 November proposed interim relief fell within that paragraph.

In relation to the restored September 2015 application, I asked Mr Drake whether the claimants had reached a view that Mr Ruhan was not implicated in the activities of Oscar. Mr Drake replied that the claimants had not reached that view, and would keep the matter under review. He envisaged that it would be examined at the hearing proposed to be fixed for the second half of December.

In relation to proposed orders against Mr Fiddler, I asked whether relevant police officers were aware of what the claimants were seeking from the court. Mr Drake responded that he could not add to what was set out in Irving 3 in that regard. I suggested that the claimants should consider whether further evidence could be provided on that topic.

In addition:

In those circumstances I proposed that the hearing be adjourned so that the claimants could consider the points which had been discussed. After taking instructions Mr Drake stated that the claimants agreed to that course.

A further hearing (“the 30 November hearing”) took place, at the claimants’ request, at 2pm on 30 November 2015. A supplementary skeleton argument (“the 30 November skeleton argument”) was produced by Mr Drake, Ms Martin, and Mr James Goudkamp that day and is described in section E4.2 below. A fourth affidavit (“Irving 4”) sworn by Ms Irving on 30 November 2015 is described in section E4.3 below. In section E4.4 below I set out what happened at the 30 November hearing.

In an introductory section the 30 November skeleton argument explained that a further draft application notice set out revised interim relief (“the 30 November proposed interim relief”) sought by the claimants. The 30 November skeleton argument comprised six main sections. The first and sixth were, respectively, the introduction and a conclusion. In the paragraphs which follow I describe what appeared in the second, third, fourth and fifth main sections.

Previous skeleton arguments had been headed with the title of the main action. The 30 November skeleton argument, however, was headed with a title of an action for which a claim number had not been identified. It described as “Applicants/Claimants” the three parties comprising the claimants in the main action. It identified as “Respondents” a single name: “Stephen Fiddler”.

In this regard, the second main section of the 30 November skeleton argument stated in paragraph 3:

3.

The Applicants take the view that the preferable course is for the orders to be sought and made in separate proceedings. The matters are, at this juncture, separate and distinct from those matters in issue in the main proceedings and it would, it is be submitted, be more expedient to maintain separate proceedings. At present, there is little obvious utility in having Oscar (and/or the Respondent) as parties in the main proceedings, with all the attendant difficulties and cost consequences. If that changes, then an application may be made to consolidate the two sets of proceedings (under CPR 3.1(2)(g)).

The third main section comprised paragraphs 4 and 5. It was headed “CPR 25APD.8”. Paragraph 4 noted that paragraph 8 of practice direction 25A accompanying CPR 25 states:

Delivery-up orders

8.1

The following provisions apply to orders, other than search orders, for delivery up or preservation of evidence or property where it is likely that such an order will be executed at the premises of the respondent or a third party.

8.2

In such cases the court shall consider whether to include in the order for the benefit or protection of the parties similar provisions to those specified above in relation to injunctions and search orders.

Paragraph 5 of the 30 November skeleton argument stated:

5.

As to this:

5.1.

The provisions apply, in terms, to delivery-up orders made by the Court under CPR 25.1(1)(e) and pursuant to the Torts (Interference with Goods) Act 1977.

5.2.

The Applicants seek no such order here.

5.3.

There is no execution here at the Respondent’s premises.

5.4.

The draft order has been significantly drawn from the pro-forma search order PD25A in order to provide for heightened protections. In particular:

5.4.1.

it is expressly stated (clause 7) that the Respondent can apply to have the Order varied or discharged;

5.4.2.

details regarding how the Court can be contacted have been inserted (clause 8);

5.4.3.

the orders are supported by undertakings offered by Stewarts Law LLP (Schedule A) (including, in particular, that the mobile phone is to be kept confidential from all persons, including the Applicants themselves (clause 5));

5.4.4.

the orders are supported by various undertakings offered by the Applicants (Schedule B), which are extensive. Detailed and comprehensive undertakings in relation to damages have been offered (clauses 2 and 3). Provision has been made (clause 4) for the Respondent to be kept fully updated regarding the present and previous hearing in relation to this application, to minimise any prejudice that he may suffer on account of its having been made without notice.

The fourth main section of the 30 November skeleton argument comprised paragraphs 6 to 26. Paragraphs 6 and 7 noted that the 30 November proposed interim relief included a reminder to Mr Fiddler of his right to assert the privilege against self incrimination. The result would be that if Mr Fiddler considered that compliance with any of the court’s orders would incriminate himself, it would be open to him to assert the privilege against self incrimination.

At paragraph 8 of the 30 November skeleton argument, however, it was submitted that there was no scope for the privilege. Three contentions were made in support of this contention.

The first contention relied on the principle that the privilege will only arise if there is a “real risk” that compliance with what would otherwise be required will result in a criminal law penalty to the person seeking to exercise the privilege. Thus a far fetched, remote or fanciful risk of incurring a criminal law penalty would not suffice. In this regard paragraph 10 of the 30 November skeleton argument stated:

10.

The orders sought by the Applicants would not expose the Respondent to a “real risk” of incurring criminal liability.

10.1.

The Applicants seek access to the Respondent’s mobile telephone for the purpose of preserving the Video Recording of Oscar that the Applicants believe is stored on it. The Video Recording itself, according to the description of it by Ms Irving in Irving 3 [1/10] at paragraph [19], does not disclose the commission of any offences by the Respondent. Neither would providing the Applicants with the mobile telephone reveal, in and of itself, that the Respondent is guilty of an offence. It is true that the mobile telephone may have stored in it incriminating material. But that possibility is of no significance for the following reasons:

10.1.1.

The mere possibility that the mobile telephone might contain incriminating material is insufficient to reach the threshold of “real risk”.

10.1.2.

The police have shown no interest in investigating the Respondent in relation to the subject matter of this Application. As Ms Irving explains in Irving 4 [2/14], the Applicants’ solicitors (Stewarts Law LLP) have been in contact with the Metropolitan Police regarding this Application (at paragraphs [4]–[8]). It is hard to see how, therefore, making the orders sought by the Applicant would create a “real risk” that the Respondent would incur a criminal law penalty if he complies with the orders sought.

10.1.3.

The Applicants also seek Norwich Pharmacal relief in order to determine the identity of Oscar. Granting such relief would not expose the Respondent to criminal liability. It is difficult to see how merely being compelled to disclose Oscar’s identity (or that of Oscar’s father) would show that the Respondent has committed an offence. At the very least, the prospect that granting such relief would expose the Respondent to criminal liability does not reach the level of a “real risk”.

The second contention was that the privilege against self incrimination arises in respect only of testimonial obligations. It is therefore inapplicable to orders of the preservation or inspection of pre-existing property under CPR 25.1. In support of this contention, paragraphs 12 to 15 of the 30 November skeleton argument relied on citations from Zuckerman on Civil Procedure (3^rd, ed, 2014) at [18.6], from Hodge and Malek, Disclosure (4^th ed, 2012) at [13.02], and from C plc v P.3 [2007] EWCA Civ 493; [2008] Ch 1 at [34] and [36].

The third contention was that, should it be necessary, the claimants could rely on section 13 of the Fraud Act 2006, which provides for an exception to the privilege against self incrimination:

13.

(1) A person is not to be excused from—

answering any question put to him in proceedings relating to property, or

complying with any order made in proceedings relating to property,

on the ground that doing so may incriminate him or his spouse or civil partner of an offence under this Act or a related offence.

(2)

But, in proceedings for an offence under this Act or a related offence, a statement or admission made by the person in—

answering such a question, or

complying with such an order,

is not admissible in evidence against him or (unless they married or became civil partners after the making of the statement or admission) his spouse or civil partner.

(3)

“Proceedings relating to property” means any proceedings for—

the recovery or administration of any property,

the execution of a trust, or

an account of any property or dealings with property,

and “property” means money or other property whether real or personal (including things in action and other intangible property).

(4)

“Related offence” means—

conspiracy to defraud;

any other offence involving any form of fraudulent conduct or purpose.

The fifth main section of the 30 November skeleton argument was headed “Police Investigations”. This section comprised paragraphs 27 to 30 of the 30 November skeleton argument, as follows:

27.

Will any order of the Court hamper investigations being conducted by the police?

28.

On Friday 27 November 2015 at 5.47pm Stewarts Law LLP sent a letter by email to Inspector Ellwood of the Metropolitan Police Service (the email was copied to certain other officers and hand delivered to the Directorate of Legal Services of the Metropolitan Police), informing him of the relief sought by the Applicants and requesting him to confirm whether granting the orders desired would interfere with any investigations.

29.

Stewarts Law LLP received a prompt response to that letter by way of a telephone call from Inspector Ellwood at approximately 6.15pm the same evening. Inspector Ellwood spoke to Mr Stefan Edwards and explained that, at that time, they had no inquiries in respect of the Respondent and therefore had no objection to the Court making the orders sought. He said that he hoped to provide written confirmation to that effect by Monday 30 November 2015.

30.

In the event, the Inspector did respond by email yesterday (29 November 2015) with written confirmation that the Court’s orders will not interfere with the Court’s investigations.

Irving 4 dealt with the question whether the 27 November proposed interim relief would interfere with investigations on the part of the police. Exhibit “SCI 4” to that affidavit included at pages 2 to 3 a letter from Stewarts Law to Inspector Ellwood describing the relief sought against Mr Fiddler and asking for confirmation that grant of that relief would not interfere with police investigations.

Also produced by Ms Irving was an attendance note made by Mr Stefan Edwards of Stewarts Law dated 27 November 2015. This attendance note gave an account of a telephone conversation with Inspector Ellwood shortly after receipt by Inspector Ellwood of an email attaching the letter of 27 November 2015. With paragraph numbers added in square brackets for convenience, the text of the attendance note was as follows:

[1] Call received from Inspector Guy Ellwood, Metropolitan Police.

[2] Insp Ellwood was responding to our letter received by email a few minutes ago.

[3] He said that he and his team really are trying to help Pro Vinci and Sinead. However this matter really is generating a lot of communication and taking up a lot of time.

[4] In his view this all comes back to the fact that Pro Vinci were approached by Oscar and handed over £130k to him. They shouldn’t have done that. He advised them not to. For what it’s worth he does think that they have been the victims of fraud. But there is just no evidence at the moment.

[5] They did have three strands of forensics enquiry, however as to those: they are unable to use the DNA analysis because the person who carried it out did not have the correct qualifications for it to be used as evidence. They lifted a fingerprint from the cup Oscar used and have run it against their database but with no matches. They have reviewed the CCTV footage but no identification has been made.

[6] We discussed Steven Fiddler. Insp Ellwood said that, again, he does not think Pro Vinci should have invited him to their office and paid him £300. I explained that my understanding was that Fiddler had contacted them to arrange the meeting and that the alternatives were either that they travel to Cheshire to meet him or that they pay his travel expenses for coming to London, which was what the £300 was.

[7] Insp Ellwood said that he had heard what happened at the meeting with Fiddler and had seen the text messages afterwards. He doesn’t see that Fiddler has committed a crime. The text messages are not direct threats and as things stand they are isolated. I said that there are now a lot of instances of threats being made, people being followed, possible attempts to frame people at Pro Vinci etc and that, from their perspective, these together constitute a constellation of incidents which are very much a course of conduct and assumed to share a directing mind. Fiddler’s texts and messages seek to distort the real position – he travelled to London to threaten Gerald and Sinead and is now seeking to portray the opposite.

[8] He asked what we were applying to the court for. I said that we are asking for an order that Fiddler identify Oscar and that he deliver up the phone with the video on it. He asked what use the video could be in moving things forward. I said I didn’t know because no-one has seen it all the way through. We don’t know what Oscar was trying to communicate. It may be an extension of the possible fraud. Or it may help in identifying Oscar or his motives.

[9] Insp Ellwood also wondered what good naming Oscar would do. I said that there appear to be two primary possibilities: either Oscar was right and someone has tried to frame Pro Vinci – in which case they want to find out who that was and if it is linked to the other incidents of intimidation – or Oscar is a fraudster who has stolen £130k of their money – in which case they would like to recover it. Either way Oscar holds the key.

[10] He said that as things stand they have no inquiries in respect of Fiddler. They called him but he refused to speak to them. They don’t see that he has committed a crime, so they have at present marked the file ‘no further action’. I said that in that case presumably they had no objection to the civil court making the orders we were seeking. He agreed they would have no objection; there is no investigation to prejudice.

[11] I asked if he could email a short response to our letter which we could show to the court. He will consult internally but does not think that will be a problem. He is working over the weekend so should be able to respond by Monday morning.

Irving 4 added at paragraph 8 that an email had been sent by Inspector Ellwood on 29 November 2015. It appears from page 6 of exhibit “SCI 4” that, after stating that he had read the contents of the letter from Stewarts Law, Inspector Ellwood continued:

I can confirm that at the current time we are not treating Steven Fidler as a suspect for an identified offence and your requests for the production of documents will not interfere with our investigation.

However, I am aware that Mr Fidler has sent a text to Sinead Irving on Friday when previously requested not to. While not threatening or abusive we have recorded the text being sent.

At an early stage at the 30 November hearing I drew attention to a passage in the attendance note of 27 November 2015 (see section 4.3 above). The passage in question was the paragraph which I have numbered “[4]”. I asked Mr Drake whether it appeared from this passage that Inspector Ellwood was recorded as stating that he had advised the claimants not to hand over money to Oscar. Mr Drake confirmed that this appeared to be the case, but added that he should take instructions in that regard. I asked that he should take instructions, and that he do so before addressing me on other matters.

As to why I had made these requests, I stated:

Let me make no bones about it; on 25 September this year I was being asked to make an unprecedented order. If I had been told that the order would authorise things which the police had advised against, the task of persuading me to grant that order would have been very much more difficult.

The hearing was then adjourned for just under an hour to enable Mr Drake to take instructions. At the resumed hearing Mr Drake stated on instructions that when Ms Irving first raised the question of Oscar with the police, officer Shipston had cautioned against meeting with Oscar on the basis that it sounded like a scam. Mr Drake acknowledged that the court was not told of this because his instructing solicitors had not been aware of it. I expressed a concern because I would have expected solicitors to be asking their client about what the police had said.

Mr Drake also said that he had instructions concerning a “disbelief” expressed by the police. In the ensuing discussion I expressed a concern at what appeared to be being suggested. It seemed that I had not been told of what the police had said in certain respects. If so, then it was no answer to say that the court was not informed because Pro Vinci considered that the police were taking a wrong approach. In those circumstances I adjourned the matter so that evidence could be prepared giving a full account of interactions with the police. I asked that the evidence should also deal with passages in the attendance note suggesting that Inspector Ellwood was questioning whether an order against Mr Fiddler would serve any useful purpose.

No further communication was received from the claimants’ legal team during the remainder of the week beginning 30 November 2015. On Monday 7 December 2015 I asked that I be provided with an update. An update the following day said that evidence would be sworn in time to provide it to me by 1pm on Wednesday 9 December, and would be accompanied by an appendix to the skeleton arguments provided previously. A request was made for a half day hearing to be listed. In response, my clerk advised that arrangements had been made for a hearing on Thursday 10 December with a time estimate of up to a day.

In section E5.2 below I deal with what was said in a fifth affidavit of Ms Irving sworn on 9 December 2015 (“Irving 5”). Despite what was said in the update provided on 8 December, no appendix or other skeleton argument was provided in advance of the 10 December hearing. I describe what happened at that hearing in section E5.3 below.

Irving 5 comprised seven sections:

I Introduction

II Relevant events before 3 September 2015

III Relevant events from 3 September to 24 September 2015

IV Relevant events from 25 September 2015 to date

V Instructions given to Stewarts Law on 30 November 2015

VI The Attendance Note

VII Reasons for bringing the application

In section I Ms Irving noted the concerns I had expressed on 30 November 2015 about Inspector Ellwood’s remarks as recorded by Mr Edwards on 27 November 2015 (see section E4.3 above). She referred to the note in which Mr Edwards recorded those remarks as “the Attendance Note”.

Paragraph 12 of Irving 5 emphasised four matters:

12.1.

I have handled the overwhelming majority of the communications between the Applicants and the police in connection with Oscar;

12.2.

I was never advised, directly or indirectly, by any police officer that the Applicants (or anyone else) should not pay Oscar £130,000 (or, indeed, any money at all);

12.3.

the police welcome the present application (or at least have no objection to the orders sought being granted) and in fact recognise the benefit of the orders. I say this because:

a)

on 3 December 2015 I received a call from Detective David Roberts from CID which is described in further detail below at paragraphs 65 to 70) in which he told me that if we obtained the orders from this Court he would be able to arrest Oscar in connection with the fraud; and

b)

on 4 December 2015, I received a telephone call from Inspector Ellwood, (which I describe in detail below (paragraphs 71) in which Inspector Ellwood told me that the police would be assisted if the orders sought by the Applicants were;

12.4.

as I describe later (paragraphs 20–40), correspondence between the Applicants and the police during the period from 3 September 2015 (the date on which Oscar first made contact with the Applicants) and 1 October 2015 (the date of the second and final payment to Oscar) was almost entirely one way: from the Applicants to the police. On behalf of the Applicants, I persistently tried to obtain support and advice from the police but most of my enquiries went unanswered.

In support of what was said about the matters at sub-paragraphs 12.1 and 12.2, sections II, III and IV of Irving 5 set out a detailed account of events before 3 September 2015, from that date up to 24 September 2015, and from 25 September 2015 onwards. The description given by Mr Irving in those sections is of a course of events in which, among other things:

Section V of Irving 5 dealt with what I had been told orally on 30 November 2015 concerning advice from the police not to meet Oscar. In that section Ms Irving’s account was that the advice given to her when she first told the police about Oscar was that while PC Shipston advised her not to meet Oscar, she believed that PC Shipston gave that advice simply out of an abundance of caution for her safety. She stated that she was confident that no police officer at any time had told her, directly or indirectly, not to pay Oscar prior to Pro Vinci having done so.

In support of what was said at paragraph 12.3 of Irving 5, section IV of Irving 5 described what was said to her by DC Roberts on 3 December 2015 and by Inspector Ellwood on 4 December 2015. In addition, section VII of Irving 5 set out a detailed analysis of the utility of the relief sought in the November application.

The hearing on 10 December 2015 was concerned both with the September 2015 application and order and with the November 2015 application. In both these respects a note from me dated 9 December 2015 identified certain matters on which I sought assistance.

As regards the September 2015 application, at the hearing on 10 December Mr Drake gave an update on the procedural position in the main action. That update confirmed what had been said in a note emailed to my clerk prior to the hearing. For present purposes it is sufficient to note that the next relevant step in the main proceedings is that applications by both parties are due to be heard in March 2016.

Mr Drake then turned to the matters which had caused me concern on 30 November 2015. As to interaction with the police, Mr Drake took me through relevant passages in Irving 5. He also referred me to further communications sent by Mr Fiddler, and to Ms Irving’s analysis of the utility of the order sought against Mr Fiddler.

Submissions by Mr Drake then dealt with matters raised in my note dated 9 December 2015. Among other things, Mr Drake stated that the claimants had not yet issued the application foreshadowed in Stewarts Law’s letter to the court dated 7 September 2015.

My note dated 9 December 2015 had referred to the “in private” status of the September 2015 application, evidence and order, and subsequent associated correspondence evidence and orders. It warned that I would seek assistance on whether there were respects in which the continuation of that “in private” status was necessary, and if so what they were. Mr Drake’s initial oral response was that the claimants would reiterate the matters that had been relied on when making the September 2015 application. On reflection, however, Mr Drake accepted that some of those matters no longer applied. Reliance had primarily been placed on concerns arising under CPR 39.2(a). The first concern that had been expressed on 25 September was that Mr Ruhan might seek to prevent Oscar from providing the relevant property. As to that, Oscar had now provided the relevant property. The second reason given in September was that it would be premature to accuse Mr Ruhan of anything. As to that, Mr Drake accepted that informing Mr Ruhan of what had happened to date would not necessarily require the claimants to accuse him of anything. Mr Drake nevertheless maintained that the approach from Oscar may be at the behest of Mr Ruhan, and to alert Mr Ruhan to the application would be, in effect, to defeat it. Mr Drake submitted that the application had been put on the basis that it might well implicate Mr Ruhan in an important way. He might do all that he could to “cover his tracks” if he learnt of what had happened. Pressure might be brought to bear on Oscar so that his assistance, if not already, would be forever lost to the claimants.

Turning to CPR 39.2(3)(d), Mr Drake accepted that at present submissions which might be made under those heads did not add to his submission under head (a) of CPR 39.2(3). As to sub-paragraph (g) Mr Drake qualified that acceptance to this extent:

… the main proceedings are very difficult proceedings…, and they have a tendency to explode into satellite litigation. One of the reasons we have sought to proceed in the way that we have is to avoid the risk of that by prematurely raising the ire of Mr Ruhan before we know the real position.

… it takes the sting or the heat out of things for the time being until such time as we know what the true position is, and we can either make something of it or not in the main proceedings.

Various technical matters were dealt with prior to the short adjournment. When the hearing resumed Mr Drake confirmed that I had been correct to assume that the police had not made contact with Mr Ruhan in relation to Oscar.

A further question was raised by me orally:

What Oscar is recorded as telling Ms Irving is that he was to make what he called “the drop” on 19 October; would it not be right to proceed on the footing that whoever it was that made the approach to Oscar must by now have realised that something has gone wrong?

Mr Drake’s reply, after the short adjournment, was:

My Lord, the last thing that you put to me was whether it was right for your Lordship to proceed on the inference that the client, if we can call them that, must surely by now know that something has gone wrong.

My Lord, we have mulled that over, over the break, we would say that it's not safe to proceed on that basis, principally because we don't really know what is going on here, and the best way I suppose to articulate that is to say that there are a number of possibilities, but we would have no way of knowing at this juncture which one is more likely than the others.

So the first possibility is that to which your Lordship alluded, which is that the client knows that something has gone wrong. Let me back up, if I may, actually. The first possibility is that the 19 October came and went without there being a drop, and the claimant -- sorry, not the claimant, the client knows that there was no drop, so the client knows that something is amiss.

The second possibility is that 19 October was not the date at all, but simply a date talked about, and that date might be 19 January, say, or 19 December.

The third possibility, which is somewhat supported by the evidence as we know it, is that Oscar has "renegotiated" the date with the client, and there is evidence to the effect that Oscar was stalling the client amidst his conversations with my clients. So that's a possibility.

Another possibility is that Oscar has demonstrated by some means that the drop took place on 19 October or some other date, and that the client is none the wiser.

MR JUSTICE WALKER: You mean that Oscar has told the client that the drop took place, but the client --

MR DRAKE: I'm sorry, yes.

MR JUSTICE WALKER: -- but in fact it has not.

MR DRAKE: But in fact it has not, and the client has been pressed to believe it by some false evidence adduced -- if the client has pressed the point, the client has been persuaded to believe it by some false evidence on the part of Oscar.

Those are possibilities, permutations that we have identified, but it rather underscores that it's, with respect, my Lord, unsafe to proceed on any given basis at all.

Submissions were made by Mr Drake on other aspects of the draft order. He then took me to the leading authority on the principles governing an order requiring others to assist by providing information. This was the decision of the Supreme Court in Rugby Football Union v Viagogo Ltd [2012] UKSC 55. In that case the Supreme Court examined the circumstances in which those wittingly or unwittingly involved in wrongdoing might be ordered to disclose information which would assist the victim of wrongdoing, in the light of developments since the decision in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133.

In that regard I was referred to paragraph 17 of Lord Kerr’s judgment in the Rugby Football Union case, identifying and discussing a number of relevant factors. It seemed to me, on consideration of those factors, that the proposal for delivery up of Mr Fiddler’s mobile phone required revision. Mr Drake said in response that a revised draft order would provide for delivery up to a third party solicitor.

Arrangements were then made for the hearing to resume at 2pm on Monday 14 December 2015. As part of those arrangements the claimants were to send my clerk an update on progress on 11 December and again no later than noon on 14 December.

As arranged on 10 December 2015, an update was emailed on 11 December 2015. Attached to the email was a revised draft order. On consideration of the update and the revised draft order it seemed to me that there was a great deal of further work that needed to be done before an order in the new claim could be made. Accordingly I prepared a note dated 13 December 2015 concerning the further work that needed to be done, and made arrangements for that note to be emailed to the claimants’ legal team that day. A further update was duly provided during the morning of 14 December, largely by emailing to my clerk a number of revised draft documents for the purposes of the hearing that afternoon.

At the start of the hearing on 14 December Mr Drake dealt with the fact that there had not, thus far, been written instructions to Mr Oslov. Subject to a minor revision, I approved the draft of a letter to Mr Oslov ensuring that he was aware of his responsibilities under CPR 35.

Turning to the new claim, Mr Drake took me to a draft claim form which had been prepared that morning. At previous hearings I had been concerned to understand how it was that the proposed new claim, saying that Oscar had been deceitful, could be consistent with continuation of the September 2015 order, which pre-supposed, at least, that Oscar had been truthful in the account of the approach made to him. As I understood it, an important reason why the two were compatible was that the claimants do not, at present, assert that Oscar’s account of that approach, as described in Irving 1, was deceitful. In that regard, I suggested that the claimants consider including in the claim form wording which made clear this particular aspect of the claim.

The next draft document put forward for consideration was the proposed application notice. The draft supplied to me had not taken account of developments at the end of the previous week and over the weekend. Arrangements were made for appropriate revisions in this regard.

Among the draft documents supplied that morning were a draft affidavit in the new claim to be sworn by Ms Irving. This would exhibit Irving 1 to Irving 5 in the main action, and would confirm that in relation to full and frank disclosure nothing further needed to be added to what had been set out in Irving 1 to Irving 5.

It seemed to me desirable that where a witness, such as Ms Irving, had provided written evidence in both the main action and the new claim, a method should be devised to distinguish evidence in the new claim from that provided by the same witness in the main action. For this reason I directed that the new affidavit of Ms Irving should be known as “Irving (Fiddler claim) 1”. The update on 11 December 2015 had proposed that Mr Malcolm Robson, a partner in Bates Wells and Braithwaite London LLP be appointed to receive delivery up of the mobile telephone. I approved the suggestion that he be designated as “Independent Solicitor” in this regard, subject to sight of a draft affidavit from him. That draft was duly produced and approved by me.

In the draft affidavit Mr Robson requested that he be given permission to appoint a computer expert to assist him. My note of 13 December had suggested that there be liberty to apply on notice for the appointment of such a person. Mr Robson explained that he would be likely to need assistance from such a person, and that this would be delayed if such a person could only be appointed after an application on notice. There appeared to be merit in Mr Robson’s point, and accordingly at the hearing on 14 December I approved revisions to the draft order in that regard. Those revisions enabled the Independent Solicitor to seek assistance from one or more individuals with expertise in analysing mobile telephones. The Independent Solicitor was then given power to appoint one such individual to act as Independent Forensic Computer Expert provided certain conditions were met. Those conditions were that the Independent Solicitor should be satisfied that the relevant individual was appropriately qualified, had no conflict of interest, and had given undertakings to comply with CPR 35 and to take reasonable care not to damage the Property. A further revision was made to the draft order giving authority to the Independent Forensic Computer Expert, as so appointed, to do the things which the Independent Solicitor had been given authority to do.

Revisions were then identified to the provisions for alternative service in the draft order, and arrangements in relation to communication with the court.

The final matter of substance dealt with at the hearing on 14 December 2015 concerned an order as to the date of, and preparations for, the next hearing in the September 2015 application. A draft had been prepared which identified 21 December as the date of the next hearing in that application. Revisions were made so as to ensure that the evidence for that hearing would deal with all such matters as might be relevant to continuance in force of all or any part of the 25 September order as varied by subsequent orders.

Analysis and conclusion

In section F2 below I deal with the stage now reached. Section F3 below, entitled “What lies ahead”, looks to the future. In section F4 below I set out my conclusion.

On 30 November I was concerned that information relevant to the September 2015 application might have been deliberately withheld. In the light of the detailed account in Irving 5, however, it seemed to me that that it would be wrong to reach that conclusion on the material now before me. I also had concerns as to whether the order proposed in the November application would have practical utility. I deal with that aspect of the matter in my separate judgment in the new proceedings. As to the work which is continuing pursuant to the September 2015 order, and as to the continued “in private” status of matters dealt with in relation to the September 2015 application, it seemed to me that these were matters which should be examined in detail at the further hearing on 21 December, and that it would not be practicable to seek to resolve the position in that regard prior to that hearing.

The September 2015 application is to be restored at the hearing on 21 December 2015. It will be important to use the intervening period to ensure that careful consideration is given to whether continuation of “in private” status can be justified. Much has now happened which has been kept not only from Mr Ruhan but also from public knowledge generally. It will require strong justification for that position to continue. This judgment has been prepared in a form which is intended to enable it to be made public as soon as the “in private” status is lifted.

The hearing on 21 December will take place at a stage when there will have been developments in the new claim. Evidence for the restored September 2015 application should, so far as possible, be prepared in advance of those developments. Arrangements should be made to ensure that the police are kept informed and can be asked to comment on the desirability or otherwise of continuation of the order in the light of developments. These steps should assist in ensuring that I am informed of all relevant matters as at the time when the affidavit is sworn. If necessary, a further affidavit on relevant developments, and the claimants’ stance on this matter as a whole, should be sworn on 20 December or on the morning of 21 December.

There have been many developments in recent weeks. The hearing on 21 December will give the court an opportunity to review the position. It will be important for the claimants to identify a time when they can pause, and conduct a realistic review of the matter as a whole, before taking a final decision as to the stance that they propose to adopt at the hearing on 21 December 2015.

The order dated 18 November 2015 (see section E3.3 of the main judgment) stated:

1.

By no later than 12:00 noon on Wednesday 18 November 2015, the Applicants’ solicitors shall provide to Constable Danny Shipston and Constable Keeley Pemberton of the London Metropolitan Police and to the Chief Officer of the Jersey Police (“the Jersey Police”) (collectively, “the Police”):

1.1

the Orders of Mr Justice Walker dated 25 September 2015 and 26 October 2015;

1.2

the material put before the Court by the Applicants when seeking the 25 September 2015 Order, namely:

(a)

the affidavit of Ms Sinead Irving of 25 September 2015, and the exhibit thereto;

(b)

the application notice issued on 25 September 2015;

(c)the draft order; and

(d)the skeleton argument for the Applicants;

1.3

the material put before the Court by the Applicants when seeking the 26 October 2015 Order, namely:

(a)

the expert report of Dr Hunton dated 18 October 2015; and

(b)

the draft order; and

1.4

any communications since 18 October 2015 between the Applicants’ solicitors and:

(a)

Dr Hunton or others at Hunton Woods Ltd; and

(b)

Mr Alex Oslov or any employee or agent of Mr Oslov.

2.

When providing the aforesaid material to the Police, the Applicants’ solicitors shall ask the Police to revert with any concern or comment on such material as soon as possible but in any event by no later than 12:00 noon on Wednesday 25 November 2015. The Applicants’ solicitors shall also upon receipt of the present order once it has been sealed provide a copy of the same to the Police.

3.

In the event that Dr Hunton and/or Mr Oslov provides any report to the Applicants’ solicitors after 12:00 noon on Wednesday 18 November 2015 and prior to the restored hearing, the Applicants shall forward the same to the Police as soon as practicable.

4.

By no later than 25 November 2015, the Applicants shall lodge with the Court a second affidavit of Ms Sinead Irving (and accompanying exhibit(s)), which shall inform the Court in relation to the following matters:

4.1

the delay in verifying the authenticity of the data provided by ‘Oscar’;

4.2

the assistance being provided by Mr Alex Oslov to Dr Hunton;

4.3

any comments or concerns expressed by the Police;

4.4

any correspondence since 18 October 2015 between the Applicants’ solicitors and:

(a)

Dr Hunton or others at Hunton Woods Ltd; and

(b)

Mr Alex Oslov or any employee or agent of Mr Oslov; and

4.5

the further relief (if any) sought by the Applicants at the 27 November 2015 hearing.

5.

The Applicants shall lodge with the Court, by email, their skeleton argument and draft order for the restored hearing by no later than 12:00 noon on Thursday 26 November 2015.

6.

The following additional documents shall be treated as private in accordance with paragraph 1 of the 25 September 2015 Order, and not be disclosed to the Defendant or his solicitors:

6.1

the Applicants’ solicitors’ letter to the Court dated 17 November 2015;

6.2

the second affidavit of Ms Sinead Irving and accompanying exhibit(s);

6.3

any communications since 18 October 2015 between the Applicants’ solicitors and:

(a)

Dr Hunton or others at Hunton Woods Ltd; and

(b)

Mr Alex Oslov or any employee or agent of Mr Oslov; and

any further communication by way of update provided to the Applicants’ solicitors by Dr Hunton and/or Mr Oslov after 12:00 noon on Wednesday 18 November 2015.